ESSAYS AND ADDRESSES 



am 








^^%j^ ^ ^^^-5^<^. 



ESSAYS AND ADDRESSES 



JVITH EXPLANATORY NOTES 



ROGER A. PRYOR 




NEW YORK 

THE NEALE PUBLISHING COMPANY 

1912 



ETcbfeo 



Copyright, 1912, by 
The Neale Publishing Company 



(^ PI A o o r» n "7 o 



TO THE MEMORY OF 

HER 

WHOSE INFLUENCE IS 

THE INSPIRATION OF THIS BOOK 



INTRODUCTION 

In my declining days, when " Whether for 
thought or for action my career is at an end," my 
mind naturally reverts to the past, and in the retro- 
spect quite as naturally lingers on events in which I 
myself bore a part, of more or less consequence. 
To these events the following collection of Essays 
and Addresses refers; and while intrinsically they 
are doubtless of little interest, they may be not with- 
out attraction to students who find instruction even 
in the ephemeral effusions of the passing day. 



CONTENTS 

CHAPTER PAGE 

I Independence of the South ii 

II The Sufficiency of the New Amendments . 35 

III The Soldier, the Friend of Peace and Union . 55 

IV The General Grant Anniversary 83 

V The Reciprocal Obligations of the Bench and 

Bar 89 

VI The Bar and Forensic Oratory 95 

VII Influence of Virginia in the Formation of the 

Federal Constitution 121 

VIII The People of the State of New York vs. The 

North River Sugar Refining Company . . 151 
Index ^49 



INDEPENDENCE OF THE SOUTH 



ESSAYS AND ADDRESSES BY ROGER A. 
PRYOR: WITH EXPLANATORY 

NOTES 



INDEPENDENCE OF THE SOUTH 

[Speech on the resohitions reported by the Committee of 
Thirty-three.] 

To-day public interest in the genesis of Seces- 
sion is attested by the number of books issuing in 
explanation of that phenomenon. Of course, these 
publications lack the authenticity and authority of 
contemporary expositions of their policy by the 
Secessionists themselves. Among such expositions 
I may be pardoned for saying that the following 
speech was recognized by my associates as a correct 
and comprehensive statement of their cause : — 

Mr. Speaker, the resolutions before the House 
invite discussion of all the issues involved in the 
present unhappy controversy. The rapid march of 
events, outstripping the dilatory movements of pro- 
crastinating politicians, leaves us no question to con- 
sider but the alternative of peace or war. While 
your committee of compromise have been painfully 
elaborating plans of adjustment — all "mean 
reparations upon mighty ruins," — the dispute has 
become incapable of accommodation; and the re- 
sults their wisdom was to intercept are now accom- 

II 



ij ESSAYS AND ADDRESSES 

pUshcd and irrevocable facts. Of the thirty-three 
States which' composed the confederacy at the be- 
ginning of this session, six are no longer members | 
of the Union. Not many days will elapse before 
others will follow their example. Sir, it is an idle 
and unmeaning mockery to talk of preserving the 
Union ; and they who indulge in this strain of dec- 
lamation betray little of the candor demanded by 
the urgency of the occasion. In the presence of 
so tremendous a catastrophe as that which now op- 
presses us — the overthrow of Government, the par- 
tition of a great empire, and the imminent hazard of 
civil war — we owe it to ourselves and to the coun- 
try to be done with the expedients of a timid and 
temporizing policy, and to address ourselves to the 
emergency without reserve and without equivoca- 
tion. 

The issue before the country, I repeat, sir, is the 
simple question of peace or war. Acting, as they 
conceive, from the impulse of abundant provoca- 
tion, and exerting a power which they derive from 
the fundamental principles of this Government, the 
States of South Carolina, Mississippi, Florida, Ala- 
bama, Georgia, and Louisiana have renounced the 
confederacy and assumed the attitude of independ- 
ent republics. The party into whose hands the 
control of the Administration is passing, so far 
from a recourse to conciliatory measures and a 
recognition of the right of secession, obdurately re- 
jects all overtures of compromise, and avows a pur- 
IKJsc to employ all the resources of Government for 



ESSAYS AND ADDRESSES 13 

the subjugation of the retiring States. And so it 
is that the calamities of civil war are about to be 
precipitated upon the country. 

Mr. Speaker, in the suspense of this dreadful ex- 
pectation, the people of the South are sustained by 
the conviction that, after the passions and prej- 
udices of the moment have passed away, impartial 
history will acquit them of responsibility for the 
consequences of the impending conflict. When- 
ever, in after times, men shall revert to the events 
of this period, they will curse the madness of those 
by whom humanity was so deeply wounded ; but not 
upon us will fall their maledictions. In what obli- 
gation of confederate duty, I demand, have we of 
the South been found delinquent? Do we not con- 
tribute more than an equal proportion to the support 
of your Government? Has not Southern states- 
manship successfully guided the councils of the Re- 
public in peace? Has not Southern valor glo- 
riously illustrated its arms on the field of battle ? To 
what pledge of confederate faith have we been 
recreant? Nor is it only in a literal compliance 
with the obligations of the constitutional compact 
that the South has exhibited its patriotic fidelity. 
In our conception something more was exacted by 
the association of fellow-citizenship; and we have 
denied the people of the North no facility in trade, 
and no advantage of policy, which might promote 
their prosperity. With whose acquiescence, and to 
whose detriment, were measures of protection en- 
acted for the aggrandizement of your manufactur- 



,4 ESSAYS AND ADDRESSES 1 

ing interest? Upon the productions of whose 
iruiustry does your splendid commerce subsist? 
Until the demon of sectional discord was roused 
by your invasion of our rights, we willingly 
bt)re tlic burden of unequal tariffs and exclusive 
N>unties, to assist the development of your re- 
sources; and your marvelous opulence we contem- 
plated with the pride of fraternal sympathy. In this 
spirit of unselfish patriotism Virginia contributed a 
princely domain to the ascendency of the North, lit- 
tle dreaming that the States to be born of her 
bounty would repay her munificence with more than 
the ingratitude of Lear's unnatural offspring. 

Sir, in what manner have the loyalty and devo- 
tion of the South been requited by our confederates 
of the North? I propound the inquiry in no spirit 
of vindictive accusation. Indeed, sir, I would de- 
spise myself no less than the public would reproach 
nic, if. at this august moment, I should contribute 
anything to the exasperation of passions already too 
nuich inflamed. I advert to the wrongs which the 
South has endured with no other view than to vin- 
dicate the i)osition she has assumed in this contro- 
versy. In what manner, I repeat, has the North 
rcfwid the fidelity with which the South has re- 
'■ • incci all the pledges of the confederate faith and 
• -rj^ed all the duties of common citizenship? 

At the qKKrh of the Revolution, and, indeed, when 
the InMlcral Covernmcnt was organized, slavery 
prevailed in the North as well as in the South. If 
IK 'I the chief, it was at least conspicuous among the 



ESSAYS AND ADDRESSES 15 

interests for the protection of which our present 
system of Government was estabHshed. The Con- 
stitution distinguishes it by express and repeated 
recognition, in each case fortifying it by particular 
guarantees. 

Now, sir, against this great and vital interest — 
an interest of which the pecuniary value is indicated 
by countless millions, and the importance of which, 
in the more essential aspect of social and political 
relation, no form of expression can adequately rep- 
resent; an interest on which subsists the material 
prosperity of the Southern States, and with which 
their security and independence are inseparably 
associated, — this interest, so vast and so vital, is 
the object of organized and incessant assault by 
those who are bound by every obligation of written 
covenant and confederate faith to protect it. They 
have launched against it the anathemas of moral 
and legal outlawry, and have canvassed Christen- 
dom for recruits in the crusade of Abolitionism. 
They have burdened it with iniquitous and oppres- 
sive impositions. They have denied it the develop- 
ment without which it cannot long endure. They 
have attacked it in detail by every variety of crim- 
inal expedient. And, finally, they have essayed, 
through the instrumentality of servile insurrection, 
to involve the South in total and irreparable ruin. 

These wrongs, I know, appeal in vain to the men 
by whom they are inflicted ; but I can imagine a 
case analogous in all essential particulars, in the con- 
templation of which they will not be likely to ex- 



,r> ESSAYS AND ADDRESSES 

hibit so much of insensibility. The manufacturing 
interest, if not the main, is among the most impor- 
tant of the industrial pursuits of New England. 
Now. sir, supiK)se the other States of the confed- 
eracy should combine for the spoliation of this in- 
terest, and to that end should hold it up to universal 
execration; should invoke upon it the vengeance 
of Heaven, and proclaim it beyond the protection 
of s^KJety; suppose they should employ the agency 
of Government for its destruction, should organize 
conspiracies to ravage it, and, to impart the last 
touch of enormity to the outrage, should inflame the 
jKissions of your operatives to bloody and incendiary 
revolt: who believes the people of New England 
would patiently endure this accumulation of in- 
juries? If they be capable of so abject a submis- 
sion, they possess not the spirit of those ancestors I 
(ti theirs with whom the most trivial exaction of il- 
legal power was an insufferable oppression. Yet 
these and greater grievances are endured by the peo- 
ple of the slave-h(jlding States, but you only mock 
*»ijr complaints and tighten the grasp of oppression. 
Why marvel, then, that the day of resistance and 
relnhution is come at last? 

Hut, sir. wc do not rest the vindication of the 
S*»uth on the slavery issue alone, nor mainly. Our 
adversaries, availing themselves of the prevalent 
prejudice against slavery, have diligently repre- 
ientetl that the secession of the South has no other 
object than the perpetuation of bondage; and the 
effect of the misstatement is visible already in the 



ESSAYS AND ADDRESSES 17 

unfriendly criticism of the foreign press. It is 
time our cause were placed upon the true grounds 
of defense; upon principles which, instead of in- 
sulating it from the sympathies of the world, will 
command respect wherever justice rules and the 
maxims of republican liberty are revered. True 
it is that the grievances of which the South com- 
plains affect chiefly the interests of slavery; but it is 
a narrow and unphilosophical view of the contro- 
versy to represent the South as protesting only 
against those grievances. There, indeed, the weight 
of the oppression is most heavily felt; but its source 
must be sought elsewhere. We commit an error 
in reasoning, and what is worse, a blunder in policy, 
when we confound the practical effect with the radi- 
cal principle of tyranny: If we mean to apply the 
resources of true statesmanship to the disorders of 
the country, we must discover and correct the or- 
ganic derangement of the system ; otherwise all cur 
pretentious prescription is but the quackery of the 
empiric. 

Sir, for fifty years the interests of the South re- 
posed and prospered under the sacred safeguards 
of the Constitution. By that compact the equality 
of the States was guaranteed, their right of self- 
government recognized, and each member of the 
confederacy mutually pledged to the others in a 
spirit of fraternal alliance. The States of the 
South acceded to the Union on these conditions; on 
the conditions that they were to be the peers of their 
sovereign associates, that their rights were to be in- 



,8 ESSAYS AND ADDRESSES 

violablc. and their property secure under the pro- 
tection of the common Government. This sacred 
- -.cnant was the bond of union between the con- 
UMicrate Repubhcs. The Constitution imposed re- 
.n>i.-al obbgations on the States, and pledged them 
til mutual ot^kes of good-will. In what manner 
,.u' these pledges redeemed, and these obligations 
ci\, by the Xorthern States? 
Foremost in the catalogue of Southern grievance 
is the complaint that the fundamental principle of 
the confederacy, the quality of the States, is sub- 
verted by a combination between a majority of 
States to exclude other States from an equal partici- 
pation in the common domain, and so to deny them 
e<|ual advantages of expansion and development 
iHuler the operation of the Federal Government. 
Nay. this Government itself is abused to the con- 
summation of that iniquity. 

To all candid men I appeal, if this single fact of 
the exclusion of the South from any share and en- 
joyment <if the joint territory of the States does not 
involve every circumstance that can rouse the in- 
dignation of freemen — a breach of constitutional 
rr.mt>act ; a stigma of inferiority; a principle of civil 
'.-..iulity; and a measure of practical oppression. 
In private life individuals resent no grievance 
vxmer than an invasion of tlieir rights of property. 
A- • ' nations an encroachment on their territorial 
I> '.(ins is an affnjnt which war alone can re- 

tirees, iJut the exclusion of the South from the 
C' !i domain of the confederacy, besides these 



ESSAYS AND ADDRESSES 19 

circumstances of Insult and aggression, implies a 
breach of the most solemn stipulation and a reflec- 
tion the most offensive on the Southern character. 
For you cannot deny the South equal rights in the 
Territories without subverting the principles of the 
Constitution; and in justification of this vv^rong the 
social system of the South is denounced as the '' sum 
of all villainies." What other or greater grievance 
need the South urge in vindication of its conduct? 

But this is not all. In respect of another essen- 
tial condition of federal union — the guarantee of 
State sovereignty, the right reserved by each State 
to administer its own affairs and to develop its own 
destinies in harmony with the general interests of 
the confederacy — whatsoever of this right may 
have survived the systematic encroachments of Fed- 
eral usurpation has vanished before the threat of 
military coercion. Already sovereign States are re- 
duced, in contemplation, to the condition of pro- 
vincial dependencies ; and that doom they would 
speedily realize but for the indomitable spirit which 
quails not before all the " pomp and circumstance " 
of your martial preparation. 

Perhaps even these radical violations of the Con- 
stitution in its spirit and essence you may repel as 
the vague refinements of a temper alert to discover 
material of sectional crimination. Let us descend, 
then, for a moment to a single instance in illustra- 
tion of the perfidy by which the South is defrauded 
of its covenanted rights. An explicit provision of 
the constitutional compact exacts the restitution of 



30 



ESSAYS Ax\D ADDRESSES 



u:gitivc slaves; yet that provision — albeit so essen- 
tial that, without it the South originally refused to 
jcMii the confederacy — is shamefully annulled by 
the Northern States; and by the default millions 
of Southern property have been confiscated. So 
flagrantly has the South been cheated of its con- 
stitutional rights and denied the advantages of the 
l^'nion — all the burdens of which, however, it bears 
in monnous disproportion! 

What stronger argument than this, of violated 
faith and broken engagements, of the invasion of 
chartered rights and the usurpation of forbidden 
|x»wer. can l)e required in vindication, if you please, 
of revolutionary measures? All writers except the 
partisans of divine right and passive obedience are 
a^;rcc<l that an infraction of the implied contract 
l>ctwcen sovereign and subject absolves the latter 
from his allegiance. It is this principle of consti- 
tutional lil>erty which distinguishes the great re- 
lx-lli(jn and the revolution of 1688 as the most glo- 
rious ei)ochs in British history. Say, then, is there 
less obligation in a solemnly ratified and written 
compact than in a tacit and disputed engagement; 
and arc sovereign States denied a redress which the 
'.< of free government guarantees to individ- 

iUit the defense of the South rests upon still 
M- • grounds; and her secession from the con- 
ff V is justified by even higher principles than 

the riRht to vindicate a violated covenant. Abso- 
lute jx.wcr is the essence of tyranny, whether the 



ESSAYS AND ADDRESSES 21 

power be wielded by a monarch or a multitude. 
The dominant section in this confederacy claims and 
exercises absolute power — ' power without limita- 
tion and without responsibility; without limitation, 
since all the restrictions of the Constitution are 
broken down; and without responsibility, because, 
in the nature of things, the weaker interest cannot 
control the majority. Of all species of tyranny, the 
South is subjected to the most intolerable. Under 
the rule of a despot we might hope something of his 
impartial indifference between the sections; but to 
be exposed to the unbridled sway of a majority, ad- 
verse in interest, inimical in feeling, and ambitious 
of domination, is to be reduced to a condition more 
abject than that of the slaves whose emancipation 
is the pretext of all this controversy. 

It is against this sectional domination, this rule 
of the majority without law and without limit — a 
rule asserted in subversion of the Constitution and 
established on the ruins of the confederacy — it is 
in resistance to this despotic and detestable rule, 
that the people of the South have taken up arms. 
This, Sir, is the cause of the South ; and tell me if 
cause more just ever consecrated revolution? It 
is the cause of self-government against the domina- 
tion of foreign power — the very cause for which 
our fathers fought in 1776. Sooner than submit 
to the irresponsible rule of alien interests, they tore 
themselves from the embrace of the mother country 
and staked all in the triumph of secession. Wash- 
ington and Jefferson were the most illustrious of 



"» > 



ESSAYS AND ADDRESSES 



sec 



„:cssionists; and we of to-day are but walking in 
the liglu of tlicir glorious example. They held it 
unworlliy of freemen to bear the burden of arbi- 
trary iniix^sition ; and they were not conciliated by 
the deceptive tender of partial representation in the 
British Parliament. The South has her Represen- 
tatives in this Capital; but their voice is of no avail 
against the Northern majority. She is taxed not 
with her own consent, but by the votes of delegates 
wh<jni she cannot control. 

I repeat, it is against the rule of a sectional des- 
potism that the South demands protection; and it 
is to assert the cause of civil liberty that she de- 
clares her independence. You of the North lav- 
ished your sympathy on the people of Hungary in 
their revolt against Austrian absolutism; but our 
cause is identical in principle and in purpose. At 
this moment, while you bestow admiration and ap- 
plause <m the revolutionists of Italy, I would re- 
mind you that the people of the South are moved 
by the same imi)atience of alien ascendency and the 
same aspiration for self-government which, after 
ages of slumber, have at last awakened the Italians 
to a recollection of their long-lost liberties. 

The cause of the South solicits recognition and 
rrpard by yet another consideration — by a con- 
-•'icration which appeals to the interest of every 
Mxtion. 

To-day it is slavery which suffers from the over- 
throw of constitutional guarantees and the irre- 
•i>lc reign of the majority. But, the principle 



ESSAYS AND ADDRESSES 23 

of absolute power once ascendant in the Govern- 
ment, no interest is secure; and circumstances will 
determine against what object it may be directed. 
If, in contravention of the compact of union, slavery 
may be oppressed by Federal action, the navigation 
of New England or the iron interest of Pennsyl- 
vania will be exposed to the same ruin whenever 
they shall incur the displeasure or invite the rapacity 
of other sections. The only safeguard of Amer- 
ican liberty is in maintaining the integrity of the 
Constitution and preserving intact the limitations 
of the Government. For that the South contends ; 
and all are alike concerned in the success of her 
cause. 

If, after the endurance of so many wrongs, and 
the menace of others still more intolerable, any- 
thing were wanting to justify the South in the pub- 
lic opinion of the world, it would be supplied by her 
solicitude to avoid violence and redress her griev- 
ances within the Union. We are reproached, I 
know, with precipitancy in not awaiting an overt 
act of hostility from the sectional Administration. 
Sir, in our judgment a proclamation of war is an 
overt act; and such proclamation we find in the 
election, by an exclusively sectional vote, of a Presi- 
dent pledged to put our rights and our property " in 
course of ultimate extinction " — a President who 
admonishes us in advance of his aggressive designs 
by the sententious but significant declaration, that 
" they who deny freedom to others do not deserve 
it themselves, and, under a just God, cannot long 



J4 ESSAYS AND ADDRESSES 

retain it." We could not agree to await inactively 
the development of the disposition of the President- 
elect ; for we claim to hold our rights by some higher 
and more solid tenure than the capricious temper of 
any individual. Indeed, the argument of our op- 
jK.nents involves a concession of our case, inas- 
much as it implies that the rights of the South are 
no lunger secured by constitutional guarantees, but 
arc suspended on the accident of an unfriendly Ad- 
ministration. 

A more imperative consideration still determined 
the South to act at once, and to act decisively. If 
negotiation might avail, we thought to strengthen 
ncg«jliatiun by a demonstration of our spirit. If 
the sword alone can reclaim our rights, we were re- 
solved not tn be unprepared for the issue. 

Mr. Speaker, since the fatal 6th of November to 
the present hour, the Representatives of the South 
have invariably exhibited an accommodating dis- 
|xisitioii. Tlie first day of our session w^as signal- 
ize<l by a j)roposition from a colleague of my own 
(Mr. l{(»tekT). which contemplated a pacific adjust- 
ment of our difticuhies. A similar movement, like- 
wise originating with a Southern man, was initiated 
in the Senate. Meanwhile various schemes of set- 
tlement have been submitted in one or the other 
House of Congress, of which, without much re- 
frard to their intrinsic efficacy, we have uniformly 
a • -d our support; while on the other side they 
b.i^f Uxn as unifonnly rejected with a contemp- 
lain of compromise. Thus while the South 



ESSAYS AND ADDRESSES 25 

is willing to remain in the Union with an assur- 
ance of its rights, the Norith declares, by a refusal 
of all concession, that it will destroy the Union 
rather than renounce its aggressive designs. In 
the perverted patriotism of the dominant party the 
Constitution of Washington is substituted by the 
platform of Lincoln; and rather than be reproached 
with logical inconsistency, it chooses to incur the 
guilt of civil war. 

And not in the negative sense of rejected com- 
promise only, does this party betray a purpose to 
push the dispute to the arbitrament of the sword. 
Instead of a proclamation of conservative policy that 
should give assurance of peace to a distracted coun- 
try, their leader announces that his Administration 
is to be directed by the counsels of the champion of 
the " irrepressible conflict." Instead of the sense of 
justice and the patriotic spirit which, we were told, 
still animate the masses of the Northern people, 
Northern legislatures vote men and munitions of 
war to chastise the resistance roused by their own 
perfidious violations of a constitutional covenant. 
And here, while with the one hand Republican Rep- 
resentatives spurn all overtures of peace, with the 
other they grasp the sword. No measure of concil- 
iation will they pass; their energies are engrossed 
in contriving schemes of coercion. Day after day 
develops the completeness of their system of force. 
Now it is a bill denying South Carolina the facili- 
ties of postal communication; anon a bill for the 
compulsory collection of the revenue at Charleston. 



26 ESSAYS AND ADDRESSES 

In ihc South frowning fortresses threaten the sub- 
jugation of sovereign States; in this District a 
hireling sokhery are concentrated to impose an ob- 
noxious ruler on an unwilling people. Auspicious 
inauguration of a Republican President! Happy- 
presage of a liberal Administration! If the con- 
clusion lie but consistent with this encouraging com- 
mencement, no doubt the next four years will rec- 
oncile the South to the rule of the dominant party. 

In aggravation of circumstances themselves suffi- 
ciently e.xasperating, the rumor, too monstrous for 
belief, that all these measures of coercion against 
the South are stimulated and directed by a son whom 
the South has delighted to honor, in proportion even 
to his own conceit of his ow^n merit, imparts a tone 
of <leei>cr indignation to the mumiurs of an out- 
raged people. 

Thus. Mr. Sjjcaker, by a series of aggressions of 
which I have attempted nothing more than an im- j 
perfect sketch, the dominant party in the North ' 
have effected that which the world in arms could 
not have accomi)lishe(l — the overthrow of this 
once gl(>ri(jus confederacy. And not content with 
an achievement that will burden their memory 
lhr«iugh all coming ages, they now purpose to con- 
summate their work by afHicting the country with 
the calamities of civil war. 

Mr. S|K-akcr. we of the South maintain that 
among the fundamental and essential articles of the 
republican faith is the doctrine that the States, hav- 
ing subscribed the constitutional compact on their 



ESSAYS AND ADDRESSES 27 

own independent volition and in the exercise of an 
inherent sovereignty, have the right, perfect and in- 
violable, to renounce the Union whenever, in their 
judgment, the Constitution is annulled and the 
Union abused to their oppression. Nay, in the very 
act of assent to the league of confederation, Vir- 
; ginia and other States, by express stipulation, re- 
served to themselves the right to resume their orig- 
inal sovereignty whenever, in their opinion, the con- 
ditions of alliance might be violated. As we under- 
stand it, this is an association of co-equal sovereign- 
ties, held in fraternal embrace by the sweet in- 
fluences of reciprocal confidence and regard ; not a 
system of reluctant and oppressive connection bound 
together by the fetters of Federal force. Nor have 
the people of the South contemplated the right of 
secession as a vain speculative proposition, but have 
cherished it as an actual and inestimable muniment 
of republican liberty. It is precisely in this par- 
ticular that the citizens of the United States have 
the advantage of the people of all other countries ; 
in that, when the checks and balances of the central 
government are overthrown, there remains the ram- 
part of State sovereignty behind which they may 
rally and maintain their rights ; and in the still more 
important particular that, through the instrumen- 
' tality of secession, they may recover their liberties 
' by the organic operation of the system without re- 
course to the dreadful extremity of revolution. 

These principles, it appears by too many distress- 
ing indications, are not prevalent in the councils of 



.»8 ESSAYS AND ADDRESSES 

the (ioniinant party. Their cry is for coercion. 
'Hicy present the South no other alternative than 
sulMnission or subjuf^ation. Sir, it is no easy effort 
to debate an issue of this sort ; and the impulse of a 
gallant people is to answer menace by defiance. But 
\vc owe it to the solemnity of the occasion to repress 
every ebullition of resentment, and to discuss even 
an offensive topic in a spirit of moderation. 

What, then, I would entreat of gentlemen on the 
other side, do they purpose by kindling the flames 
of civil war? No matter w^hat may be the issue, 
lil)erty cannot survive the conflict. The frail 
fabric of a system constructed for the abode of 
peace would perish under the shocks and concus- 
sions of intestine strife. An armed encounter be- 
tween the States would be fatal to a Constitution de- 
si;^'iK-<l to hold them in amicable association; and 
your I'nion would go down with the principle of 
nuitual c(jnsent on which it reposes. He must be 
inattentive to the i)lainest lessons of history who 
d«»e8 not foresee that from a bloody struggle among 
the States — bclln})i plus-quam civile — either an- 
archy would emerge to brood over the land with 
'lating presence, or else military violence would 
'Tt its iron sway. What though the fortune of 
war \k propitious to your arms? You must be con- 
tent with nothing less than the annihilation of the 
:th ; for. while she breathes, the impulse of honor 
\^\\\ throb in her lx)som and urge her to still further 
resistance. Recollect the story of Ireland's wrongs 
and Ireland's emancipation. The remorseless con- 



ESSAYS AND ADDRESSES 29 

queror doomed her to desolation ; but fate reserved 
her as a dependent province of the British Empire. 
How, as a thorn in England's side, she avenged her- 
self on the tyrant, and at last extorted from his 
fears the recognition of her rights, your intelligence 
needs not to be instructed. And so would your 
difficulty be our opportunity. 

Imagine, then, for a moment the complete subju- 
gation of the South ; after every spark of vitality is 
extinguished, and her inanimate form lies prostrate 
before you, tell me, what recompense do you gain 
for all your sacrifices, or what consolation in the 
tormenting memory of your fratricidal deed? 

But I dismiss the humiliating thought. No mat- 
ter what her inferiority of force, you cannot subju- 
gate the South. Smitten she may be, but not sub- 
dued; defeated, but never dismayed. Already, by 
her determined and defiant attitude, she gives you 
earnest of the spirit that will animate her sons in 
the hour of trial. From many memorable examples 
of heroic resistance to wrong they derive the con- 
solatory assurance that a brave people battling for 
the right are invincible against any odds. Nine 
million of freemen — and heed not, I admonish you, 
the treacherous suggestion that the South will not 
oppose a united front to the foe — nine million of 
freemen, of a race the most energetic and indomi- 
table recorded in history, glorying in traditions of 
ancestral prowess, and attached to the cause of lib- 
erty with a chivalric devotion — this people, them- 
selves distinguished for valor and the genius of 



30 ESSAYS AND ADDRESSES 

war, contending on their own soil for whatever im- 
I)arts a fehcity to hfe — this people will laugh to 
scorn all the imposing array of your military prep- 
aration. 

Not for themselves, then, do they deprecate a 
conflict of arms; but from respect to the memory of 
our common ancestry; for the sake of a land to be 
rent by the cruel lacerations of the sword; and in 
reverence of virtues a benign religion instructs them 
to adore. By the persuasion of these pious and 
pathetic importunities we would soothe in every 
breast the spirit of strife and invoke the pacific in- 
tervention of reason for the adjustment of our dis- 
putes. 

And what, I pray you, is the dictate of reason? 
Not, surely, that a free people should be held in sub- 
jection to a government they detest; not that the 
sword be employed to coerce sovereign States, and 
constrain them to wear the yoke of an odious and 
oppressive association; but rather that distinct com- 
munities l)e permitted to follow the bent of their 
f)cculiar nationality, and to realize the destiny indi- 
cated by their own interests and their ow^n aspira- 
tions. \\)u of the North hold in your grasp the 
elements of a great empire — a teeming population, 
immense resources, and a daring energy of genius 
which surmounts all obstacles, and dazzles the 
world with its exploits. For our part, in slight 
esteem as you affect to hold the South, we are con- 
tent with our portion. Whensoever occasion shall 
rcfjuire — and occasion does now demand it — we 



ESSAYS AND ADDRESSES 31 

are prepared to assert our equality among the sov- 
ereigns of the earth, and to make good the claim 
against all comers. 

Instead, then, of vainly essaying to counteract 
the designs of nature, let us heed the voice of 
reason; instead of lamenting the rupture of an arti- 
ficial tie, as involving the ruin of all our hopes, let 
us lean on the wisdom of Providence, persuaded 
that as He has already distinguished the epoch of 
Revolution as the most glorious in the annals of 
America, He intends still farther to advance the 
cause of freedom and civilization by means of an- 
other dissevered nationality. 



II 



THE SUFFICIENCY OF THE NEW 
AMENDMENTS 



II 

THE SUFFICIENCY OF THE NEW 
AMENDMENTS 

Judge Tourgee in the March [1890] issue 
of the Forum challenges the efficacy of the recent 
Constitutional Amendments to accomplish the re- 
sults they were designed to secure, namely, the in- 
tegrity of the Union and the protection of the 
colored population. That the essay was not a mere 
academic disputation, but was inspired by a serious 
purpose and contemplates important objects, the 
writer, if he does not frankly avow, yet plainly 
betrays. But whatever the motive of the argu- 
ment, its obvious tendency is to excite the appre- 
hensions of all who are solicitous for the stability 
of the Union, and to agitate eight million colored 
citizens with anxiety for the security of those rights 
which they had supposed to be guaranteed them by 
the provisions of the amended Constitution. To 
quiet these alarms, and to confirm conviction of 
the sufficiency of those enactments for the great 
ends to which they are directed, is the purpose of 
this contribution. 

Before proceeding to a consideration of Judge 
Tourgee's specific criticism of the Amendments, it 
is important to observe a radical modification which 
they have efTfected in the relations of the national 
Government to the people of the United States. 

35 



36 ESSAYS AND ADDRESSES 

Prior to the adoption of the Amendments, the 
essential rights and Hberties of the people had no 
other safeguard than the guarantees of the State 
Constitutions. The earlier Amendments of the 
Constitution were limitations only upon the action 
of the Federal Government, and imposed no re- 
straint on the States in their relations to the people. 
Excepting the prohibition of bills of attainder, ex 
post facto laws, and law^s impairing the obligation 
of contracts, the States were left absolutely free 
to define and regulate the people's rights. Now, 
it is conceivable that passion and prejudice and 
sinister interest might so prevail in a particular 
State, or in particular States, as to induce an abro- 
gation of the securities of civil liberty, or, at all 
events, such a judicial construction of those securi- 
ties as would render them nugatory. But by oper- 
ation of the new Amendments all the essential 
rights and ]i!)erties of the people are taken under 
the protection of the Federal government, and are 
jjuaranteed inviolability as against the States and 
any of their agencies. 

I. "No State shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States." ^ Judge Tourgee 
conii)lains that here is no definition or enumera- 
tion of the " privileges and immunities of citizens," 
and that hence they stand insecurely upon mere 
judicial construction. But certainly it was a politic 
caution to a!)stain fn^m such definition and enu- 
» Constitution, Article XIV., Sec. i. 



ESSAYS AND ADDRESSES 37 

nieratlon, lest perchance some precious right or lib- 
erty should inadvertently escape mention and fail of 
protection. Already " judicial construction " has 
ascertained and declared that these privileges and 
immunities are those which '* belong of right to the 
citizens of all free governments " ; that they em- 
brace all the fundamental rights of freemen; that 
they include every right within the comprehensive 
formula of the Declaration of Independence — ^the 
right to " life, liberty, and the pursuit of happi- 
ness." To ascertain what those fundamental 
rights of freemen are which the clause in discussion 
places under the guardianship of the national Gov- 
ernment, we need only to recur to the earlier 
Amendments of the Constitution. As first pro- 
pounded, the Constitution contained no bill of 
rights, no reservation of individual right from the 
scope of governmental action; but, in deference to 
the demand of the people, the defect was promptly 
repaired. Surely, then, those rights which the 
earlier Amendments of the Constitution were de- 
vised and adopted to secure fall within the category 
of " fundamental rights of freemen," else they 
would not have been so anxiously consecrated and 
conserved by the fundamental law of the nation. 
Reverting to the rights so distinguished and pro- 
tected from infringement, we find that among 
others are included these: freedom of religion, of 
speech, and of the press; security against unrea- 
sonable searches and seizures; the right of a speedy 
and public trial by an impartial jury; exemption 



38 ESSAYS AND ADDRESSES 

iruui sell-accusing evidence; immunity from arbi- 
tran- invasion of person or property. All these 
rights now stand inviolable under the guaranty of 
the Federal Government. 

2. ** No State shall deprive any person of life, 
liberty, or property without due process of law." 
Ouite unaccountably Judge Tourgee omits this pro- 
vision in his enumeration of the " constitutional ad- 
vances " made by the new Amendments. Surely 
he dues not consider this safeguard against the 
arbitrary encroachment of the State upon the rights 
of person and property as of too trivial signifi- 
cance to be noticed, for of all the securities to the 
I)c<>ple provided by the new Amendments none is 
of wider scope or farther-reaching consequence. 
Treviously to its enactment, nothing stood between 
the State and the lives, liberties, and property of 
its citizens save its own volition embodied in an 
(jrganic law which it might change at will ; but now 
any invasion of the rights of person or property, 
cxcc])t ** according to the prescribed forms and 
solemnities for ascertaining guilt or determining 
the title to property," is forbidden to the States; 
and the nation, with its almighty power, stands 
l>ctwccn the victim and the aggressor. Nor can the 
Slate evade the restriction by a procedure devised 
U»T tlic i)urpose, for " a statute passed for working 
the wrong: is not due process of law." ^ 

3. " No State shall deny to any person the equal 
protection of the laws." By this provision the 

* Bronson, J., in Porter v. Taylor, 4 Hill, 140. 



ESSAYS AND ADDRESSES 39 

equality of all persons before the law is recognized 
and enforced by the Federal authority; and the 
State, in the distribution of the benefits and the im- 
position of the burdens of government, will not be 
suffered to discriminate adversely to the rights of 
any man or class in the community — to administer 
one law to the poor and another to the rich, one 
law to the white man and another to the negro. 
The beneficial operation of this guaranty has 
already been displayed, in protecting corporations 
from unequal exactions, in shielding Chinamen 
from hostile discrimination, and in securing the 
negro an impartial jury on his deliverance from 
criminal accusation. 

Thus it is that now the freedom and the security 
of the i\merican people are protected by a twofold 
panoply — the safeguard of the State and the safe- 
guard of the nation. If the new Amendments had 
no other or further effect, this alone would chal- 
lenge for them the grateful homage of the people. 
But the crowning glory of the new Amendments 
remains yet to be signalized. By Article XIII 
slavery, of whatever name and in whatever guise, 
was effaced forever from the soil of America; and 
by the first section of Article XIV, citizenship — 
State as well as national — was made the birth- 
right of the negro. Thus by these beneficent and 
ever-memorable enactments five million human 
beings were set free from bondage and invested 
with the plenitude of citizenship in the imperial re- 
public of the world; and by a caprice of retributive 



40 ESSAYS AND ADDRESSES 

jiisiice tlie court which had just declared them in- 
capable of civic rights was made the sanctuary of 
their hl)crties. 

So far the Amendments seem entirely adequate 
to the ends for which they were designed. But 
Judge Tuurgee affirms them to be defective still in 
two essential particulars. First, he says : 

'• The doctrines of the paramount prerogative of 
the State and the paramount allegiance of the citi- 
zen to the State, are said to have been ' settled by 
war.' These doctrines are not even yet obnoxious 
to any constitutional inhibition. Their correlates, 
secession and nuHification, are not punishable of- 
fenses, nor even constitutionally-negatived theories. 
The doctrine of State sovereignty rests to-day upon 
precisely the same legal basis that it did one hun- 
dred years ago. . . . To some this w^ill seem, 
perhaps, a surprising fact." 

Not to " some," but to all, and not " perhaps," 
luit certainly, it is a surprising revelation that so 
much blood and treasure have been expended to no 
purj)ose ; that so many heroic lives have been of- 
fered in a useless and, because useless, a wicked 
sacrifice; that the wisdom and virtue of statesmen 
have l)cen exerted in vain to consolidate the Union 
"n the stable basis of constitutional authority; and 
that, after all, secession and nullification are still 
vital and operative principles in our political sys- 
tem. For one, at all events, I reject this cynical 



ESSAYS AND ADDRESSES 41 

estimate of the results of the mighty struggle. For 
one, I hold that secession and nullification, as 
potential facts, were annihilated by the stroke of 
war, and that as principles they no longer find 
shelter or pretense of justification in the theory of 
our government. 

The occasion of Judge Tourgee's pessimistic out- 
cry is the omission from the new Amendments of 
any explicit negation of the right of secession. But 
here was another wise and politic abstention on the 
part of the statesmen who reconstructed the Union. 
A direct and formal denial, in the new Amend- 
ments, of the right of secession would imply a 
necessity for such denial ; and the necessity of such 
denial would involve the admission that otherwise 
the right did exist ; and this admission would carry 
with it the implication that, after all, the Confed- 
eracy had reason and right on its side. And if so, 
then the war on the part of the North was an in- 
iquitous crusade against a people contending only 
for their chartered rights. But the statesmen 
of that day were too sagacious to commit them- 
selves and the nation to so self -stultifying a con- 
clusion. 

Nor, indeed, was any explicit challenge of the 
principle of secession necessary to its exorcism 
from our system of government. The case was 
this : the Confederates affirmed the right of a State 
to withdraw at will from the Union, and denied the 
right of the nation to coerce them back into the 
Union; the nation denied the right of secession, 



42 ESSAYS AND ADDRESSES 

and asserted its right to compel a State to remain 
in the Union. Upon this issue the battle was 
fought, with the result that, in point of fact, the 
asserted right of secession proved to be nothing 
more than an idle claim incapable of enforcement, 
and fraught with the most frightful calamities to 
the party advancing it. That the right of seces- 
sion, whatever its validity in abstract speculation, 
is no longer a practical principle in American poli- 
tics, and will never again be asserted as the ground 
and justification of separation from the Union, has 
Ijccn definitely settled by the most decisive of all 
adjudications — the dread arbitrament of war. 
Power is a surer guaranty than paper. 

And yet the new Amendments do negative the 
rip^ht of secession by implication, that is, by abro- 
gating the fundamental principle of the former 
feileral system, and by substituting a principle with 
which paramount State allegiance and, so, the right 
of secession are utterly incompatible. 

As the original Articles of Confederation con- 
stituted only a league betw^een the States, citizen- 
ship of the so-united States was a thing inconceiv- 
ai)lc; and accordingly the only citizenship then 
|Kissil>lc as a legal fact was citizenship of the State. 
National citizenship was introduced for the first 
time into the American polity by the Constitution 
of 1787. But national citizenship under that Con- 
stitution was not primary and paramount, but 
secondary and subordinate. National citizenship 
was only an incident of State citizenship; one was 



) 



ESSAYS AND ADDRESSES 43 

a citizen of /the Union because, and only because, 
he was a citizen of a State. 

'' Strictly speaking, there were no citizens of the 
United States, but only of some one of them." ^ 
''Under the Constitution [of 1787], citizenship of 
the United States, in reference to natives, was de- 
pendent upon citizenship in the several States, 
under their Constitution and laws." * '' No man 
was a citizen of the United States, except as he was 
a citizen of one of the States." ^ " Every citizen 
of a State is ipso facto a citizen of the United 
States." ^ 

Since, then, citizenship of the State was the 
primary and paramount citizenship, and citizenship 
of the United States only derivative and depend- 
ent, the logic of secession deduced the conclusions, 
first, that allegiance to the State was primary and 
paramount, and allegiance to the United States 
only secondary and subordinate; and, secondly, 
that on occasion of conflict between these diverse 
allegiances, allegiance to the State imposed the 
greater and the more imperative obligation. Hence 
the doctrine of the right of secession. 

But by the new Amendments all this is changed. 
The principle is inverted. Allegiance to the Union 
is made the primary and paramount allegiance, im- 

3 Shannon v. Hill, 26 Federal Reporter, 343- 
* Slaughter-house Cases, 16 Wallace, 94. 
5 Id., 72. 
« Story on the Constitution, Sec. 1693. 



44 ESSAYS AND ADDRESSES 

posing' the greater and the controlling obligation; 
and allegiance to the State is degraded to a deriva- 
tive and dependent allegiance, imposing no obliga- 
tion in competition with the original and supreme 
allegiance. " All persons born or naturalized in 
the United States are citizens of the United States 
and of the State in which they reside." '^ Thus, 
citizenship is created by the Federal Government, 
and prescribed by it to the State. Accordingly, 

" A citizen of a State is now only a citizen of the 
United States residing in that State." ^ " Citizen- 
ship of the United States is the primary citizenship ; 
State citizenship is secondary and derivative, de- 
IK'nding upon citizenship of the United States." ^ 

Thus, by the new Amendments the fundamental 
postulate of secession and nullification, namely, the 
supremacy of the State citizenship and State allegi- 
ance, is destroyed, and in its stead is substituted 
the contradictory principle of the supremacy of 
national citizenship and national allegiance — a 
I)rincii)le which necessarily involves negation of the 
right of .secession and nullification. 

I>y another j^rovision of the new Amendments 
still another implied but emphatic protest against 
tlie ri,[,dit of secession protects the integrity of the 
Union, ^riie first section of Article XIV forbids 
a State to abridge *' the privileges or immunities 
of citizens of tlie United States." But the assump- 

T .Amendments, Article XIV., Sec. I. 

"Slaughter-house Cases, g=;. «! 

Md.. 112. 



ESSAYS AND ADDRESSES 45 

tion that a State may leave the Union at will neces- 
sarily involves the admission that a State may not 
only " abridge " but abolish the " privileges and 
immunities of citizens of the United States " ; for 
manifestly no federal privilege or immunity can 
attach to a community not in the Union. 

Even more decisive against the hypothesis that 
secession may still consist with the Constitution, is 
the provision by which Congress is armed with 
plenary power to enforce all the guaranties of the 
new Amendments. By this provision the nation 
assumes supremacy and sovereignty over the States ; 
and unless a right to coerce a State be compatible 
with the right of a State to secede, this provision 
annihilates secession. 

Suffer me to deduce, as a corollary from the 
foregoing argument, a hope that Judge Tourgee's 
imagination will be no longer affrighted by the 
phantom of secession. 

But, secondly, Judge Tourgee's chief criticism of 
the new Amendments is directed against the pro- 
visions affecting the elective franchise ; and he ex- 
pends much labor in an effort to show that they are 
altogether insufficient as a guaranty of suffrage to 
the negro. Indisputably, if their object was 
formally to confer the suffrage upon the negro, 
these Amendments have miscarried in their design, 
although in effect they may in a certain predica- 
ment invest him with the elective franchise. -^^ 

In readjusting the relations of the Government 

^^ Ex parte Yarborough, iio U. S., 665. 



4^ ESSAYS AND ADDRESSES 

and people after emancipation, it was as competent 
to the nation to make the negro a voter as to make 
him a citizen ; but such degradation of the States, 
by (lc|)riving them of the distinctive feature of 
autonomy, namely, the right to create and qualify 
the electoral iDody, was not in the minds of the 
framcrs of the new Amendments, who even in that 
tremendous crisis adhered tenaciously to the char- 
acteristic principles of the federal system. They 
plainly desired that the newly-enfranchised class 
should l:>e invested with the suffrage; but they 
recognized that, in conformity with the genius of 
our institutions, the right to vote was within the 
^ft of the State, and not of the United States. 
So, by the second section of the Fourteenth Amend- 
ment, the most persuasive argument was employed 
to induce the States to confer the elective franchise 
on the negro, namely, the provision that if he be 
not a voter he shall not be a constituent of repre- 
sentation. It being apprehended, however, that 
not even ihc aggrandizement of their political 
ixnvcr \v(juld avail alone to move the Southern 
States to bestow the suffrage on the negro, the 
nati<in. then, by the Fifteenth Amendment, forbade 
any discrimination against him in conferring the 
riRht to vote. Further than this the new Amend- 
ments do not guarantee the elective franchise to 
the negr... Is this guarantee sufficient? Judge 
TourKcc contends that it is not; I affirm that it is. 
Ihc interdict in the Fifteenth Amendment 
afrnmst denying or abridging the right to vote on 



ESSAYS AND ADDRESSES 47 

account of race or color, not only prevents the ab- 
solute disfranchisement of the negro, but insures 
him also an equality of electoral capacity; for a 
prescription of different qualifications involves 
necessarily an abridgment of the right to vote of 
the race upon w^hom the more onerous condition is 
imposed. Hence the fact that in every State of 
the Union the black man is a voter, and a voter 
upon precisely the same conditions as are pre- 
scribed for the white man. 

But, it is said, the States may deprive the negro 
of the suffrage. So likewise may they deprive 
the white man. Nay, so must they deprive the 
white man, for under the Fifteenth Amendment no 
disqualification can be applied to the' black man 
that is not equally operative against the white; 
and, conversely, whatever qualification is conferred 
on the white man, ipso facto operates to make the 
negro a voter." The States can disfranchise the 
negro not otherwise than by disfranchising at the 
same stroke the white man. Any enfranchisement 
must embrace both classes equally and alike; any 
proscription must include both classes equally and 
alike. Again, any disfranchisement of the negro 
by a State reduces proportionally its political power 
— its vote in the House of Representatives and its 
vote in the Electoral College. That the South 
should so sacrifice its influence in the government is 
an event that has not happened, and that, we may 
be sure, will not happen. And still more incon- 
11 Ex parte Yarborough, loc. cit. 



48 KSSAVS AND ADDRESSES 

ccivahlc is it that, in order to disfranchise the 
ncjjro. the white men of the South will voluntarily 
disfranchise themselves. 

Thus, l)y the conjoint effect of these two provi- 
sions in the new Amendments, the negro is abun- 
dantly guaranteed in the enjoyment of the elective 

franchise. 

lUit Judge Tourgee propounds a construction of 
the I'ifteenth Amendment which, if tenable, would 
indeed arm the States with power to withhold the 
.sufTragc from the negro ; and it is that construction 
which inflaiues him with indignation and alarm for 
the imperiled rights of the colored people. The 
language of the Amendment is : " The right of 
citizens of the United States to vote shall not be 
denied or abridged on account of race," etc. In 
his exposition of the sense of these words the 
learned commentator assumes that *' the term 
* right to vote ' means the vested right of a duly 
quahfied voter " ; that one who *' has never possessed 
the right to vote has not a right to vote which can 
l)c denied nr abridged." And from thi? postulate 
he ik-fhices the inference that the only operation of 
the I'iflcenth Amendment is to prevent the depriva- 
tion of an already enfranchised voter — to hinder 
the taking away of what the citizen has; but that 
the provision is utterly ineffectual to prevent with- 
h«»lding the suffrage from any one in whom it is 
not actually vested. In other words, the proposi- 
tkin is that while the Fifteenth Amendment disables 
a State to disfranchise existing voters on account 



ESSAYS AND ADDRESSES 49 

of race, etc., the State Is not restrained from refus- 
ing to confer the suffrage on a negro in whom it 
is not already vested. That I am not gratuitously 
imputing to Judge Tourgee a far-fetched and fan- 
tastic conceit is demonstrated by his own explicit 
affirmation of power in a State " to provide that, 
on and after a certain date, only zvhite males should 
become voters on arriving at the age of twenty-one 
years." Surely, no argument can be necessary to 
exhibit the absurdity of this proposition. Its 
basis is a verbal quibble as strained and fanciful 
as that by which in formier days a certain Aboli- 
tionist essayed to prove that the Constitution for- 
bade restitution of fugitive slaves : '' No person 
held to service or labor in one State, escaping into 
another . . . shall be delivered up." If the 
provision were that no citizen shall be deprived of 
the right to vote, there might be some plausibility 
in the contention ; but as it is the denial of the right 
that is prohibited, such prohibition is violated when- 
ever concession of the right is refused. Indeed, 
Judge Tourgee himself admits that the purpose in 
the adoption of the Amendment was " to provide 
that a colored man should, in every State and for 
all time, be entitled to become a voter upon the 
same terms and conditions as the white man " ; and 
the words employed are apt and efficient to accom- 
plish the purpose. 

Whether Judge Tourgee intends modestly to 
suggest a doubt as to the validity of his contention, 
or means rather to claim the merit of originality 



50 ESSAYS AND ADDRESSES 

for his discovery, he admits that ''the view now 
presented has not been taken by juridical writers." 
It is said al>ove that, under certain circumstances, 
the effect of tlie Fifteenth Amendment might be 
to confer the elective franchise on the negro; but 
even then, that effect is dependent upon the voli- 
tion of the State. The language of the Amend- 
ment is merely negative — not bestowing suffrage, 
but only forbidding a deprivation of it on account 
of race, color, or condition. It is by compelling a 
choice between the admission of the negro and the 
exclusion of the white man, that the former may 
be incidentally invested with the right to vote; but 
still the State is free to elect between the alterna- 
tive propositions, and so may defeat negro suffrage, 
as it may defeat white suffrage. In either case it 
is the will of the State that determines the event. 
It results, therefore, that the Fifteenth Amend- 
ment is obnoxious to neither of the two objections 
leveled against it from opposite quarters — from 
(»ne quarter, that it imperatively bestows suffrage 
on the negro; from the other, that it affords no 
arlef|uate guaranty against the exclusion of the 
nej^To from the elective franchise. Precisely the 
same guaranty secures suffrage to the negro and to 
the white man; namely, an identical qualification 
f«»r l>oth and a loss of political power consequent 
on the proscription of either. 

I-'nough is written, I trust, to vindicate the new 
Amendments from the disparagements of a critic 
to whom, one would suppose, they would appear of 



i 



ESSAYS AND ADDRESSES 51 

inestimable moment and value, as imparting and 
securing all the rights and privileges of American 
citizenship to the race of which he has approved 
himself the able and enthusiastic champion. 

Along with Magna Charta and the Declaration 
of Independence, these ordinances will descend to 
the remotest posterity as monuments of human 
freedom and progress. 



Ill 

THE SOLDIER THE FRIEND OF PEACE 

AND UNION 



I 



Ill 

THE SOLDIER THE FRIEND OF PEACE 

AND UNION 

[The proceedings on the evening of Decoration Day, May 
30, 1877, iri the Academy of Music, Brooklyn, were character- 
ized by this circumstance of special interest : that it was the 
first reunion in the country of Federal and Confederate 
soldiers after the close of the Civil War. General Catlin, a 
distinguished hero of the War, spoke as the representative of 
the Federal army; General Pryor gave expression to the senti- 
ments of Confederate veterans on the interesting occasion. 
The following correspondence sufficiently explains the publica- 
tion of the speech here presented : 

Brooklyn, N. Y.,7une 6, 1877. 
To The Hon. Roger A. Pryor: 

Sir — Your address at the Academy of Music, in this city, on 
the evening of Decoration Day, has struck us as so valuable a 
contribution to the history of the time, and as so likely to con- 
duce to the growth and strength of amicable relations through- 
out the country, that we consider its extensive circulation very 
desirable. To that end we respectfully ask that it may be 
published in pamphlet form. 

William C. De Witt, Frederick A. Schroeder, 

John P. Rolfe, John Greenwood, 

Winchester Britton, Samuel D. Morris, 

B. F. Tracy, Abraham H. Dailey, 

A. W. Tenney, Geo. G. Reynolds, 

Geo. H. Fisher, Albert Daggett, 

John A. Lott, J. S. T. Stranahan, 

Joshua M. Van Cott, Demas Strong, 

Jacob I. Bergen, John W. Hunter, 

Edgar N. Cullen, Stewart L. Woodford, 

John Winslow, J. W. Gilbert, 

Alex. McCue, John R. Kennaday, 

Henry C. Murphy, Lucien Birdseye. 

55 



56 ESSAYS AND ADDRESSES 

Brooklyn, 147 Willow St., 
June 9, 1877. 

Gentlemen: 

My aim in preparing the address was to promote the 
••^owth and strength of amicable relations throughout the 
country," and since you assure me its publication may conduce 
to that rcsuh. I have pleasure in placing it at your disposal. 
With a grateful sense of the kindness implied by your re- 
quest, I am, gentlemen, 

Most respectfully, 

Your obedient servant, 
Roger A. Pryor. 

Messrs. William C. De Witt, and others.] 

While thanking you, gentlemen of the com- 
niiilcc, fur the invitation which privileges me to 
he present on this interesting occasion, I owe it to 
candor to disclaim the affectation of regarding 
your civility as implying in any sense a personal 
conii)liment. It bears, I know, a w^eightier and a 
worthier significance. In soliciting the participa- 
tion of Confederate soldiers in the solemnities of 
this (lay, you mean to tender them an overture of 
reconciliation, to avow your good-will toward your 
recent adversaries, and to proclaim your desire for 
the prevalence of peace and fraternal feeling be- 
tween the lately belligerent sections. By no token 
more touching and impressive could you make man- 
ifest these liberal and patriotic sentiments. To 
iJfnfTcr your former foes a share in the simple but 
pathetic ceremonial by which, on this hallowed 
anniver.sary. you symbolize the perennial bloom 
and fraj^'rancc associated with the memory of your 
flrnrtrtcd comrades, to admit us into the sanctuary 



I 



ESSAYS AND ADDRESSES 57 

of your sorrows, and allow us to unite in the 
homage you render to the fallen heroes of the 
Union, is indeed so affecting a testimonial of your 
kindness and magnanimity, that we unreservedl}' 
yield ourselves to its benign influences and recip- 
rocate, with all the warmth or our ardent Southern 
nature, the inarticulate but heartfelt aspiration for 
the reign of peace and good-will over our agitated 
and afflicted land. 

That from our bosoms every vindictive and un- 
charitable recollection of the unhappy conflict is 
banished, never to return, we this day attest by the 
last act of concession and conciliation — even by 
bearing the tribute of praise and benediction to the 
tomb by whose hand our Confederate Republic 
was stricken down. 

By a solemnity so impressive, by a sacrifice so 
transcendent, the soldiers of the lately contending 
armies trust to propitiate the fell spirit of discord, 
and to gladden the nation once more with the bless- 
ings of a restored and reconciled country. 

And this, the highest office and most precious 
service of patriotism, is fitly appropriated and dis- 
charged by the soldier; for, was not the soldier 
ever the friend of peace and the Union? 

If we carry back our memories to the contro- 
versy which eventually issued in the war, we shall 
recall the name of no soldier, on either side, who 
aided to inflame the animosities of section and pre- 
cipitate the collision. The bloody business of 
secession, with all its disastrous consequences, was 



58 ESSAYS AND ADDRESSES 

wholly the act of the professed men of peace — 
the politicians. They nullified the Constitution in 
its plainest and most peremptory obligation; they 
broke that compact of pacification — the Missouri 
Compromise — under which the Union had re- 
posed for nigh forty years; they rekindled and 
blew into conflagration the almost extinct embers 
of the abolition agitation; they obtruded into the 
presence of the Supreme Court with their factious 
clamor, and compelled even that august tribunal to 
l)ecome accomplice in the work of commotion ; they 
lashed the popular mind into fury over imaginary 
wrongs, and to intercept the occurrence of fictitious 
evils occasioned a catastrophe which actually 
afflicted the country with every conceivable calam- 
ity. To vindicate the abstract right of potential 
secession they challenged an encounter which issued 
in the irresistible aggrandizement of the Federal 
power; to presen'e the ideal existence of slavery 
in the Territories they provoked a war which ended 
in the annihilation of slavery in the States. 

Meanwhile the soldiers of the nation, no matter 
where their l)irlh or what their political opinions, 
uniformly opposed themselves to every act and 
every word of which the aim or tendency w^as to 
engender ill-feeling between the States or impair 
the stability of the Union. The illustrious Scott, 
hero of two wars, victor on the far distant battle- 
fields of Chippewa and Cerro Gordo, achieved, in 
his endeavor to arrest the progress of disunion, a i 



ESSAYS AND ADDRESSES 59 

civic crown no less resplendent than his martial 
fame.^ 

And that other Federal soldier, right arm of 
Scott in his career of conquest, whom to name now 
might perchance jar upon the harmonies of the 
occasion, but of whose exploits history nevertheless 
will make due celebration in her immortal epic — 
he, like his great chief, was pierced with the 
anguish of despair by the menace of civil war. 
Not the ill-fated Falkland himself was more ten- 
derly enamored of peace, or more passionately 
prayed Heaven to avert from his country the agony 
and the ignominy of fratricidal strife, than he who 
by the cruel irony of fate was destined to lead the 
Confederate armies through so much carnage in a 
hopeless struggle with the Union. 

And so with all. Call the roll of fighting men, 
whether in the army or the navy, and mark one 
known to fame who was not the friend of peace, 
the advocate of conciliation. The soldier is a 
patriot from necessity — ^by the habits of educa- 
tion, and by the instincts of honor, which to him 
are the principles of nature. Identified with the 
fortunes of no party, implicated in the intrigues of 
no faction, he looks to the country, the whole coun- 
try, for the recognition and reward of his valor. 
Meaning himself to fight if peace be impossible, and 
well aware that war is the consummation of human 

1 Allusion to General Scott's suppression of the South Caro- 
lina Nullification movement in 1833. 



6o ESSAYS AND ADDRESSES 

woe. he shrinks back from the dread arbitrament 
till duty bids him draw the sword. 

Ancfso, while free from the awful responsibility 
attaching to any the least agency in causing the 
conflict of 1861, yet when by the follies and the 
crimes of the politicians the crisis came, the sol- 
dier was prompt to respond to the call of his coun- 
try. 

His country — but where was his country? 
Upon this momentous question the simplicity of 
the military man was perplexed by the sophistica- 
tions of the politicians. To the Southern soldier 
the State — the sovereign State — whose guardian 
care he felt in every interest and relation of life, 
whose lx)som was for him the " mother earth " 
whence he sprang and to which he w^ould return 
in the sepulchres of his fathers — to the reason 
and affection of the Southern soldier the State ap- 
])calcd with a supreme and irresistible title to 
allegiance. But Federal soldiers! Your country 
was coiumensurate with the limits of the united 
States; the symbol of your fealty w-as the flag 
floating over the undivided and indivisible expanse 
of the Republic; the cause for which you fought 
was the Union inviolate and inviolable. 

At this point of political divergence parted the 
soldier of the North and of the South — each im- 
pelled by a motive of genuine patriotism, each 
contending for a cause which shone clear to his 
conscience, each striving after an object deemed 
worthy of heroic effort and heroic sacrifice. Hap- 



ESSAYS AND ADDRESSES 6i 

pily for the infirmities of human nature, the 
Supreme Ruler, in dispensing his retributions by 
means of the moral judgments of the world, com- 
passionates the errors of man and to his motives 
only imputes culpability. From the reproach of 
conscious wrong the soldier of the South is free; 
and if, in lifting his hand against the majesty of 
the Republic, he were in fault, grievously has he 
answered it! Obdurate indeed must be the heart 

— harder than the rock hewn from the Caucasus 

— that can look abroad over the wasted fields and 
the desolate homes and the stricken families of the 
South, and not melt into pity at the spectacle of 
so much suffering and so much sorrow. In the 
bloody conflict friends were lost to you, — ^ over 
their graves we have strewn to-day garlands of 
amaranthine bloom, — but far from your homes and 
your harvests rolled the lava tide of war; and in 
the triumph of your cause you found a consoling 
recompense for your bereavements. Men died, but 
the Union lived; and the earth was filled with the 
echoes of your acclamation. But for the Confed- 
erate soldier all was lost ; and as he came back from 
his captivity silence greeted him with the welcome 
of despair! Feel you not that to exult over his 
misfortunes ill-beseems the pride of a magnanimous 
foe! 

So much in any event is certain, that by fear- 
lessly fronting death, and by the heroic endurance 
of pains and privations worse than the agony of 
death, the Confederate soldier vindicated tri- 



62 ESSAYS AND ADDRESSES 

iimphantly the sincerity of his conviction and made 
friK)d whatever claim to your consideration is im- | 
phed in an unselfish devotion to a cherished though 
vanquished cause. Victrix causa diis placuit sed 

victa Catoni. 

Xo blame, then, for that stupendous folly, the 
war of secession, attaches to the men who bore its 
brunt. The politician began it; the soldier ended 
it. And, during its progress, whatever of barbar- 
ity aggravated its essential ills is imputable, not to 
the fighting man, but to the civilian. Clemency 
no less than courage is the ornament of true 
knighthood ; but while the soldier's spirit is exalted 
by the ambition of glorious deeds, the politician 
stoops to mean resentments and ignoble reprisals. 
For those acts of vengeance of which each side 
hastens now to exculpate itself to history, but over 
which it l>ehooves both to drop the veil of obliv- 
ion — for those dastardly and despicable inhumani- 
ties the men of the cabinet are accountable; and 
the luster of Grant's and Lee's renown is untar- 
nished by the atrocities of the prison-camp. The 
columns of neither army, in their intrepid onset, 
were inllamed by the incitements of passion; but in 
the fury of tlie combat feeling still for his foe the 
afTection of a fonner and a future brother, the 
sol(her gladly sheathed his sword from his bloody 
executi(jn. Tn every pause of battle the contend- 
ingf hosts intermingled, and for their involuntary 
cruelties made atonement by an eager interchange 
of the charities of humanity. On the field of 



ESSAYS AND ADDRESSES 63 

Antietam, while the carnage stayed that the 
wounded and the dying might be taken away from 
the dreadful scene, a Confederate general [the 
speaker] and your own gallant Meagher grasped 
hands, in pledge of a friendship the shock of war 
could not break asunder, and in instinctive but un- 
spoken presage of a community of country that re- 
turning peace should restore and perpetuate. 

But it was in the final catastrophe of the contest 
that the spirit of chivalry attained its appropriate 
culmination — when the great captain of the armies 
of the Union, in accepting the surrender of his 
equally great antagonist, spared him the humilia- 
tions of defeat, and to him and his vanquished vet- 
erans accorded the tribute of glory due to a frus- 
trate but heroic struggle. Then was exhibited in 
no unequal measure the greatness of soul with which 
the Roman conqueror saluted the misfortunes of 
the Macedonian monarch ; and then too did the 
leader of the '' Lost Cause " by his unshaken equa- 
nimity put to shame the supplications of Alexander's 
degenerate successor. 

Such being the spirit of the soldiers in the war, 
no wonder they hailed with enthusiasm the advent 
of peace ; no wonder that from the slaughter of com- 
patriots their impatient hand turned with alacrity to 
the blessed work of pacification. 

With what eager overtures of reconciliation did 
Sherman signal to Johnston to desist from the un- 
natural contest ; and with what a wise magnanimity 
did he lure the heart of his adversary back to its 



r.4 ESSAYS AND ADDRESSES 

early love for the Union. Brilliant though be the 
campaign by which he cut the Confederacy asun- 
der, his most worthy achievement w^as the capitula- 
tion of Raleigh, for by that act of intrepid gener- 
osity he made conquest of the affections of his foe, 
and transformed an embattled host into a com- 
munity of grateful citizens. Had not that aus- 
picious compact been annulled by the intrigues of 
the politicians, had its benign spirit informed and 
actuated all subsequent policies of reconstruction, 
the darkest page in the history of the Republic 
would not remain yet to be written, and this glad 
day of reconciliation would have been anticipated 
by many long and agonizing years. No, fellow- 
citizens, for the interval of gloom and shame lying 
between the baleful splendor of the war and the 
I)rcsent golden dawn of peace; for the nameless out- 
rages and ignominies of that dismal period, — 
massacres of the helpless, violations of the ballot, 
usurpations of force on the popular will and the 
independence of the States, — with these affronts to 
freedom and civilization the soldier may not be re- 
proached. I lis intervention, when at times it has 
hai)pcncd to arrest the operation of constitutional 
JTovcrnment, was not the effect of his own volition; 
for standing guard over imprisoned liberty is not 
the wilhng service of the American soldier; and if 
he ap[)eared on the scene of confusion, his presence 
was ever the guaranty of order and tranquillity. 
When a detachment of troops occupied the capitol 
of South Carolina, the hitherto unsullied sanctuary 



ESSAYS AND ADDRESSES 65 

of its sovereignty, they moved in submission to an 
order from Washington; but when afterward the 
Federal soldiers in New Orleans fraternized with 
Confederates in celebrating the deliverance of 
Louisiana, they responded to the spontaneous and 
exultant impulse of their own gallant spirits. 

In the system of American government the auton- 
omy of the State is a no less essential principle than 
the liberty of the individual ; exists, indeed, only as 
the support and safeguard of the personal rights ; 
and when in the march of encroachment the inde- 
pendence of the State is subdued, the freedom of the 
citizen is exposed to an easy and irresistible subjec- 
tion. 

But a scheme of administration by which the civil 
was subordinated to the military power, and the 
prodigy of republican institutions under the patron- 
age of bayonets exhibited to the wondering gaze of 
the world, by which that most precious principle of 
American liberty, the right of local self-government, 
w^as subverted and on its ruin erected a repulsive 
compound of alien rule and Federal domination; by 
which sovereign States were reduced to the impo- 
tence of satrapies and a commandant of the bar- 
racks invested with the majesty of the people: such 
a scheme of administration, however specious the 
pretext of its existence, and however formidable 
the forces enlisted in its support, was doomed from 
the beginning, and by the organic vice of its being, 
to an inevitable and ignominious overthrow. 
Fallen it is at last; fallen like Lucifer, never to hope 



66 ESSAYS AND ADDRESSES 

.i-.-ii'n: fallen by the thunderbolt of the people's 
wrath: and as it topples down ''in hideous ruin 
and combustion," the nation hails with acclama- 
tion the returning reign of freedom and peace. 

And by none is the auspicious day of liberation 
and reconciliation saluted with more enthusiasm 
than by the veterans of the Union army. In the 
phantom of '' the bloody shirt " and the specter of 
the " prostrate State " factions foimd available 
topics of incendiary appeal, and politicians combine 
now to accuse and obstruct a pacification which 
threatens to leave neither party a cherished wrong 
to expose nor a fondly nursed grievance to de- 
nounce; but the soldier, instinct with a better patriot- 
ism, seeks no object besides the welfare of the 
country and, informed by a truer wisdom, knows no 
(;ther policy than the counsels of conciliation. 

Yes, fellow-citizens, the Union is re-established; 
re-established not only in the supremacy, but in 
the beneficence of its power; re-established not 
merely over the wills, but over the hearts of the 
people, and of all the people. While its privileges 
and protection were unequally dispensed, while 
toward the South the Constitution shone with a 
darkened and sinister aspect, the affections of the 
peoj)lc were chilled and their confidence repelled; 
but now that every State is respected in her sov- 
ereignty and every man in liis rights, the Union is 
restored in all its ancient strength and glory: and 
be jKTsuaded. you may repose as serene a trust on 
the loyalty of Louisiana as upon the well-tried fidel- 



ESSAYS AND ADDRESSES 6j 

ity of your own great commonwealth. In obliter- 
ating all discriminations between States and between 
citizens, you have effaced the ill-omened distinc- 
tion of sections, and henceforth in the vocabulary 
of American politics the South is only a geograph- 
ical expression. 

And this is the tribute a Confederate soldier 
brings to-day to the graves of the fallen heroes of 
the Union — the solemn assurance that they fell not 
in vain, — that the work they died to achieve saved 
the Union from overthrow, you by the policy of 
justice and magnanimity have enshrined it in the 
hearts of its once furious but now reclaimed and 
reconciled foes. 

If we may suppose the men whose deeds you now 
commemorate to be attentive still in their blest 
abodes to the transactions of their surviving com- 
rades, with what joy and exultation do they contem- 
plate the incidents of this day! Insensible though 
they be to the echoes of earthly applause, even their 
chastened and exalted spirits must be soothed by the 
solemn acclaim of a nation rendering homage to 
the virtues of its heroic dead. But, not in the hush 
of a gracious holiday, nor in floral offering, nor 
martial requiem, nor the pomp and pageantry of a 
funeral procession; nor yet in the voice of renown 
reverberating their exploits through the ages, — not 
in any nor in all of these celebrations so dear to the 
heart of mortal hero does the supreme reward, the 
true triumph, of the departed soldiers of the Union 
consist. In this alone is their glory consummated 



rnS ESSAYS AND ADDRESSES 

— thai Ihe cause for which they gave their lives 
has prevailed ; in this alone is their victory complete 

that the repul)lic has emerged from the cloud and 

carnage of war unbroken in unity and undimmed in 
Ulster; in this is the ecstasy of their exultation — 
that hands once red with fraternal blood are this 
tlay clasped in pledge and proclamation of a re- 
stored and perpetual brotherhood. While man ap- 
plauds, heaven ratifies the reunion, and beams ap- 
provingly on the prevalence of charity in the coun- 
cils of nations. 

Tliat the memories of intestine w^ar oppose no ol> 
stable to the reunion and harmonious co-operation 
of the once hostile parties and dependencies, expe- 
rience attests by abundant and most instructive in- 
stances. Indeed, from the largest induction we 
may infer it as a principle of political philosophy, 
that the development of national unity is accom- 
plished by the method of internal agitation, and that 
the coherence of the aggregated parts of a state is 
proportioned to the violence wnth w^iich they are 
brought together. For illustration we have no need 
to recur to the remote if not imaginary examples of 
classic history; for of the annals of modern times 
the monotonous lesson is that empire is composed 
of a succession of conquests, and is consolidated by 
the fierce but ineffectual efforts of its constituent 
mem!)crs to resist the process of assimilation. 

In I-'rance the war of the Fronde issued in the 
establishment of that compactest of nationalities; 
and of the followers of Napoleon in his conquest of 



ESSAYS AND ADDRESSES 69 

Europe the most faithful were those Vendeean 
Bourbons who so desperately resisted the regime of 
the revolution. In the united Germany of to-day 
we see the result of centuries of civil and religious 
struggle; nor of the provinces ruled by the Kaiser 
are they the least docile and devoted that the vic- 
tory of Sadowa gave him. Sweden and Norway 
have accommodated their traditional feuds by union 
under a single crown; while Austria and Hungary, 
having replaced the subjugation of 1849 t>y an al- 
liance of choice and equality, move onward in the 
path of prosperity under the impulse of the same 
will and an identical interest. In Italy the hates 
and revenges of a thousand years' domestic conflict 
have yielded at last to the undying instinct of na- 
tionality; and Florence and Genoa, Venice and 
Rome, are once more embodied in the unity of a 
free and mighty empire. Most significant of all is 
the instance of Great Britain ; for it conveys at once 
a promise and an admonition ; and by the examples 
of Scotland and Ireland teaches statesmen as well 
the folly of a proscriptive as the wisdom of a mag- 
nanimous policy. The boast of Chatham was not 
an idle vaunt. The hereditary foe of the Lowlander 
he enticed from his mountain fastness, tamed his 
wild spirit to the arts of peace, and, by according 
him the rights of a freeman, inspired the devotion 
that stayed the onset at Waterloo and brought re- 
lief to the despair of Lucknow. But Ireland — 
after ages of conquest her heart still spurns the 
Saxon's caress; and her gallant sons, finding in 



yo ESSAYS AND ADDRESSES 

their native land neither civil nor religious liberty, 
to llie ai^crrandizement of England's rival contribute 
the strength of their ami and the wealth of their 
genius. Ireland to-day repeats the mournful re- 
frain of history, that injustice and intolerance are 
the blight of empire; while in the opulence and re- 
pose of Scotland we behold the never-failing effect 
of a policy of conciliation. 

No cause have you, people of the North! to mis- 
trust the professions of fealty to the Union by 
which the Confederate soldier requites your fidelity 
to the Constitution. To his forefathers history as- 
cribes, and you will not refuse, an equal hand in 
forming the Union, an equal contribution to its re- 
sources, and an equal courage and devotion in its 
defense. From the day a Southern soldier took 
command of the army of the Revolution in the capi- 
tal of Massachusetts down to that recent time when 
another Southern soldier led the armies of the Union 
to tlie cai)ilal of Mexico, the men of the South have 
l>orne a not inferior i)art in every effort and every 
sacrifice for the glory of the Union. 

Pardon me if I recall that it was a Southern 
man — even Washington — with whom, by the 
suggestion of the Conference at Annapolis in 1786, 
originated the idea of the Union; that by another 
Southern man — Randolph, of Virginia — the 
fundamental* ])lan of the Union was propounded to 
the Convention at Thiladelphia ; that Virginia, in 
conjunction with New York, determined the final 
adoption of .the compact of union; that it was 



ESSAYS AND ADDRESSES 71 

Marshall, the Virginian, who by authentic and au- 
thoritative construction of the Federal Constitu- 
tion endowed the Union with the energies of a na- 
tion and enabled it to survive the strain of civil 
war; that it was Monroe, the Virginian, who, by 
asserting the freedom of the New World from the 
intrigues of European ambition, opened for the 
Union an unimpeded and unbounded arena of de- 
velopment; that Virginia of her bounty brought to 
the bridal of the young Republic the gift of an im- 
perial domain — and, let me add, all shrunken and 
beggared as she is, she does not repent that she im- 
poverished herself for the aggrandizement of the 
Union; that by the skill of a Southern statesman 
the navigation of the Mississippi was liberated from 
foreign control and made the priceless monopoly 
of American commerce; that by a Southern Presi- 
dent the second war of independence was conducted 
to a successful termination ; that by the diplomacy of 
another Southern President Texas was wooed and 
won to the embrace of the Union; that under the 
administration of still another Southern President 
the Union was enriched and embellished by our gol- 
den conquests on the Pacific. Bear with me while, 
not in the ostentation of sectional vainglory, but 
merely to verify the fidelity of the Confederate sol- 
dier to the Union, I recount these among the many 
services and trophies which his forefathers have 
contributed to the strength and grandeur of the na- 
tion. 

With the people of the South affection for the 



-^2 ESSAYS AND ADDRESSES 

Union was a sentiment of ancestral pride as well 
as a principle of traditional policy; and only by the 
urgency of some casual and extraordinary crisis 
could they ever have been precipitated into seces- 
sion, 'rhey went about to erect a separate govern- 
ment for themselves, not from an impulse of hos- 
tility to the Union, but from attachment to prin- 
ciples they had been taught to think paramount to 
the Union itself ; and in parting from the Union they 
felt all the pangs of violated nature as well as the 
griefs of baffled hope. But now that slavery no 
longer impinges on their understanding with a sin- 
ister bias, and the idol of State sovereignty no 
longer challenges of them a divided duty, love of the 
Union resumes its original ascendency in their 
hearts; the beneficence of the Union claims a su- 
preme consideration in their counsels. 

Be assured, Southern statesmanship is not so 
l)lin(led in its proverbial sagacity as not to see that 
henceforth the strength and security of the South 
are to be f(jund only under the shield of the Union. 
Against the perils of foreign invasion it gains in the 
I'nion the bulwark of a mighty prestige and an in- 
vincible army. As a guaranty of peace betw^een its 
discordant i)eoples the ever-imminent intervention of 
the I'ederal arm will operate to deter the unruly and 
to tramiuillize the timid. Freedom and facility of 
access to every part of this vast and opulent land 
oi)cn to the enterprise of the South a boundless field 
of adventure, and impart to its industrial and 
commercial energies a quickening impulse of de- 



ESSAYS AND ADDRESSES 73 

velopment and fruition. Meanwhile, an expedient 
devised to balk the ambition of the white race re- 
coils upon its course, and, by augmenting the politi- 
cal power of the South, enables its aspiring spirits 
to play a splendid and superior part on the theater 
of Federal affairs. 

If, in contrast with the brilliant future offered 
to the South in the Union, you contemplate for a 
moment the destiny to which it would be condemned 
by another civil convulsion, caused by another re- 
volt against the Federal power; the havoc and car- 
nage of a war aggravated by a conflict between 
races and issuing inevitably in the catastrophe of a 
remorseless subjugation, you cannot, on the suppo- 
sition that the Southern people are rational beings, 
impute to them any other policy or purpose than to 
cleave to the Union as their only and their all-suf- 
ficient shelter and support. 

But you say, perhaps, that these dictates of 
reason, obvious and imperative though they be, are 
counteracted by the blind impulses of passion; that 
rage at the miscarriage of his cause, revenge for the 
many calamities and contumelies he suffered from 
the victorious North; that all the unappeased and 
inappeasable resentments of the war, still operate 
to cherish in the Confederate soldier undying hate 
of the Union. Now, I do not pretend — it is not 
essential to my argument to pretend — ■ that the 
Southern soldier contemplated the fall of the Con- 
federacy w^ith indifference. Born of an enthusiasm 
for liberty, erratic, if you please, but not the less 



74 ESSAYS AND ADDRESSES 

genuine and exalted ; endeared by the memory of so 
many sacrifices and so many sorrows heroically 
lK:>rne in its behalf; gilded by so much glory and 
halK»wcd by the blood of the brave and the tears of 
the fair, its disastrous overthrow smote upon the 
heart of the Southern soldier with an anguish he 
may not utter, but which he disdains to dissemble. 
Nor will you, its exultant but not ungenerous foe, 
grudge him who followed its flag through the few 
years of its battle-crowded career this mournful 
recollection of its tragic story. 

r>ut this is the effusion of feeling; an homage of 
the heart for which it does not solicit the sanction 
of reason. h>om the vantage ground of a larger 
observation, with a more calm and considerate medi- 
tation on the causes and conditions of national pros- 
l)erity: I. for one, cannot resist the conclusion that, 
after all, Providence wisely ordered the event, and 
that it is well for the South itself that it w^as dis- 
ai)i)oinlc(l in its endeavor to establish a separate 
gcn-crnmcnt. Plain is it to be seen now that such 
governmeni. if once established, could not in the 
nature of things have long endured, since in con- 
ce(hng tlic right of any State to secede at will the 
Constitution of the Confederacy made express pro- 
vision for its own dissolution. A little while, and 
its nienil:)ers, urged by some special interest or sin- 
ister ambition, would have receded from the alli- 
ance; and then one after another have fallen a prey 
to forei^Mi aggression or domestic anarchy. More- 
over, the process of disintegration would not have 



ESSAYS AND ADDRESSES 75 

ceased with the exit of the South nor have been 
limited to the confines of the Confederacy; but the 
example of successful dismemberment, communi- 
cating its contagion to the remaining States, and 
the principle of cohesion lost from the Union, North 
America would have exhibited that dissolving view 
of crumbling governments and chaotic societies 
which in other quarters of the New World so dis- 
heartens the friends of freedom and civilization. 

Nor to the restoration of the Union is the Con- 
federate soldier any the less reconciled by the de- 
struction of slavery. True, the material interests 
of the South were essentially implicated in the main- 
tenance of the system ; but, philosophically, it was 
the occasion, not the cause of secession. For the 
cause of secession you must look beyond the incident 
of the anti-slavery agitation to that irrepressible 
conflict between the principles of State sovereignty 
and Federal supremacy which, menacing the Union 
in its conception as the twin children of the patri- 
arch wrestled for the mastery in their mother's 
womb, again endangered its existence in 1798 on 
occasion of the Alien and Sedition laws ; and again 
in 1819, on occasion of the admission of Missouri; 
and still again in 1833, on occasion of the protective 
tariff ; and which, arrested by no concession and ac- 
commodated by no compromise, continued to rage 
with increasing fury until, provoking the revolt of 
the South, it terminated finally in the absolute and 
resistless ascendency of the national power. 

In 1 86 1 the people of the South resented the 



76 ESSAYS AND ADDRESSES 

intervention of the Federal Government to restrict 
the extension of slavery; but it was the principle 
not the object, of the interference that encountered 
their opposition ; and any other usurpation of Fed- 
eral power on the sovereign rights of the States 
would equally have challenged their resistance. 
Nor, suffer me to say, was slavery any more the 
point of your attack than of our defense ; for other- 
w ise, in beginning the war the Federal Government 
would not have been so scrupulous to proclaim 
through all its organs its purpose not to touch any 
the least of the securities of slave property. 

Xo, people of the North, impartial history will 
record that slavery fell not by any effort of man's 
will, but by the immediate intervention and act of 
the Almighty himself; and in the anthem of praise 
ascending to Heaven for the emancipation of four 
million human beings, the voice of the Confederate 
soldier mingles its note of devout gratulation. The 
Divinity that presided over the destinies of the Re- 
public at its nativity graciously endowed it with 
every element of sta1)ility save one; and now that in 
the exuberance of its bounty the same propitious 
Providence is pleased to replace the weakness of 
slavery by the unconquerable strength of freedom, 
we may fondly hope that the existence of our 
blessed Union is limited only by the mortality that 
measures the duration of all human institutions. 

I»iit why argue on si)eculative grounds, to prove 
the patriotism of the Confederate soldier, — since 
withm these few months he has, by so memorable 



i 



ESSAYS AND ADDRESSES jy 

an illustration, vindicated his fidelity to the Union? 
You cannot have forgotten — for the land still 
trembles with the agitations of the crisis — that 
when of late a disputed succession to the Presidency 
appalled the country with the imminence of civil 
war; when business stood still and men held their 
breath in apprehension of a calamity of which the 
very shadow sufficed to eclipse all the joy of the 
nation ! — you cannot but remember how, obdurate 
to the entreaties of party and impenetrable to the 
promptings of resentment, and responsive only to 
the inspirations of patriotism, the Confederate sol- 
dier in Congress spoke peace to the affrighted land. 
Your difficulty was his opportunity; he had only to 
say the word and the fatal fourth of March would 
have passed without the choice of a Federal execu- 
tive, and the Union have been involved in the agon- 
ies of a dynastic struggle. But with a sublime mag- 
nanimity he spurned the proffered revenge — and 
yet do you say the Confederate soldier is false to 
his allegiance? 

Pardon me if even in this presence I make bold to 
protest that he was never faithless to his trust; to 
declare that when you thought him treacherous to 
the Union he was only true to his State ; and to tell 
you that when he braved all the wrath of your ma- 
jestic power, it was only in heroic fidelity to a weak, 
but with him an all-commanding cause. If your 
I reproach be just, and the Confederate soldier were 
a conscious culprit, then indeed is reconciliation a 
folly and a crime; for, if false to you once, he may 



78 ESSAYS AND ADDRESSES 

l>ctrav yon aj^ain; and instead of alluring him to 
your'cn'ibrace by these overtures of fraternity, you 
should repel him from your presence as a perfidious 
outcast. No, patriots of the Union! the Confed- 
erate soldier offers not to your confidence a con- 
science stained with the guilt of recreancy. Veter- 
ans of the Union ! he comes not into your compan- 
ionship with confession of criminality; but for the 
credentials of his loyalty to the Union he proudly 
adchices the constancy with which he clung to the 
fortunes of his ill-starred Confederacy. 

And so. fellow-citizens, by the reciprocation of es- 
teem and the kindly offices of mutual confidence, the 
soldiers of the late war are brought to-day to frater- 
nize over the graves of their departed comrades, 
and to renew with ceremonies of impressive solem- 
nity their vows of fealty to the Constitution and the 
Union. While on the one side the soldier of the 
North engages to keep watch over the rights of the 
State, and to see that its liberties be not profaned 
by mihtary usurpation, nor its sovereignty dispar- 
aged by h^deral intervention, the Confederate sol- 
(hcr on his part pledges himself to repel every ap- 
proach of danger to the Union. Of this alliance 
so propitious to the peace and stability of the na- 
tion, no ill-omened reminiscence shall interpose to 
imj)eril the integrity; but whatsoever of common 
glory may be gathered from the annals of the Re- 
public shall Ik^ culled out and collected into an in- 
dissoluble bond of brotherhood. The memory of 
Washington and Montgomery, Greene and Putnam, 



ESSAYS AND ADDRESSES 79 

of Jefferson and Hamilton, of Jackson and Mc- 
Donough ; the shades of the nameless heroes of the 
Revolution, whose unforgotten graves v^ere not 
passed without honor in the processions of this 
day,^ — all, all shall be invoked to still the clamor of 
sectional jealousies. Nay, even the incidents of our 
unhappy conflict, gaining as they recede from view 
the halo of historic illustration, shall lose their irri- 
tating and repulsive aspect ; and the victories of the 
war shall be recounted wnth equal and impartial ex- 
ultation whether they signalize Federal or Confed- 
erate valor. And hereafter, should the menace of 
foreign aggression summon us to marshal the 
heroes of the past for present encouragement and 
emulation, the images of Grant and Lee, of '' Stone- 
wall " and Sherman, shall speak a sufficient assur- 
ance at home and admonition abroad, that for the 
most puissant power on earth the conquest of Amer- 
ica is an impossible achievement. Thus, even in 
the tomb the Federal and the Confederate soldier 
shall prove the friends of peace; and their blended 
memories serve as a safeguard of the Union. 

2 The American soldiers who fell in the battle of Long 
Island were buried at Fort Greene; and part of the perform- 
ances of the day was the decoration of their graves. 



I 



IV 

THE GENERAL GRANT ANNIVERSARY 



IV 
THE GENERAL GRANT ANNIVERSARY 

[Speech on the occasion of the banquet to celebrate the 
seventy-first anniversary of the birth of General U. S. Grant, 
at The Waldorf, Thursday, April 27, 1893.] 

General Horace Porter presented Judge Roger 
A. Pryor, with the following introduction. 

Gentlemen — We have another distinguished 
general here to-night, who fought with us in the 
w^ar, but not on the same side. It has been said 
that it is astounding how you like a man after you 
fight him. That is the reason we have him here to- 
night — to give him a warm reception. 

He always gave us a warm reception. He used 
to take us and provide for us, and was willing to 
keep us out of harm's way while hostilities lasted 
— • unless sooner exchanged. He was always in the 
front, and his further appearance in the front to- 
night is a reflection upon the accuracy of our mark- 
manship. Not knowing how to punish him there, 
we brought him up to New York and sentenced 
him to fourteen years of hard labor on the bench. 
Gentlemen, I introduce to you General Roger A. 
Pryor. 

In reply Judge Pryor said: Mr. Chairman 

83 



84 ESSAYS AND ADDRESSES 

AND Gentlemen — It was the sword of Grant 
that smote the Confederacy to its fall ; and yet I, a 
Confederate soldier, am pleased in the privilege af- 
forded me by your invitation of testifying my ap- 
preciation of his greatness. 

By the accordant voices of all men in all ages 
martial achievement constitutes a pre-eminent title 
to renown ; and it is not for me to gainsay the glory 
of him whose skill baffled the strategy of Johnston 
and prevailed over the genius of my own illustrious 
commander. 

From Donelson to Vicksburg the campaign of 
General Grant in the West was an unchequered 
career of conquest. In the East he effaced from 
your flag the blemish of a three years' ineffectual 
effort, and carried it in triumph to the catastrophe 
at Appomattox. Commencing his career at the be- 
ginning of the war on a level with the million men 
you sent to the field, with no power to push his 
fortunes, with no augury of success attaching to 
his name, with a modesty that veiled his worth and 
hindered his advancement, nevertheless, at the end 
of the arduous struggle he emerged, by merit alone, 
pre-eminent over all rivalry and the unchallenged 
chieftain of the armies of the North. That he 
achieved what all others had failed to accomplish, 
that, confronted by a foe of unsurpassed courage 
and constancy, and opposed by leaders with an ability 
for war unequal only to the attainment of the im- 
possible, he yet overcame all obstacles and van- 
quished every antagonist, is enough to associate 



3 



ESSAYS AND ADDRESSES 85 

him with the Caesars and Napoleons in the Pantheon 
of Immortals. 

But even more worthy of homage than his mili- 
tary exploits is the magnanimity with which, in the 
hour of triumph, he disdained the trophies of vic- 
tory, and the clemency with which, in the fury of 
battle, he proffered a helping hand to his fallen foe. 

There are those who, conceding the distinction 
of Grant as a soldier, affect to deplore his miscar- 
riage as a statesman. But when I recall the prob- 
lems that confronted him as President — the re- 
pairing of ravages of war — helium plus — quam 
civile; the repressing the spirit of revolt smothered, 
but not subdued; the ameliorating the evils of the 
social and civil convulsion in the South consequent 
on the emancipation of five million negro slaves 
and their incorporation into the system of American 
citizenship ; recollecting, too, the critical altercations 
with foreign powers inherited by his administration 
remembering these tremendous troubles, and consid- 
ering that nevertheless he safely piloted the Republic 
through all its perils, and delivered it to his suc- 
cessor unfettered in freedom, undiminished in 
strength, and undimmed in luster, I do not hesitate 
to avow the conviction that Grant was as great in 
peace as in war. 

Laying aside, however, all his other titles to re- 
nown, this remains unquestioned and unquestion- 
able — that this strong arm upheld the Union in the 
instant of imminent overthrow, and assured it an 
endless duration of grandeur and glory; and I, a 



86 ESSAYS AND ADDRESSES 

Confederate soldier, proclaim that by the preserva- 
tion of the Union Grant rendered to the cause of 
liberty and civilization as transcendent a service as 
any recorded in the annals of human achievement. 

And so. by the majestic simplicity of his char- 
acter ; by his constancy in adversity and his modera- 
tion in prosperity; by his genius alike in peace and 
in war; by the splendor of his deeds in the merid- 
ian of life, and by his sublime fortitude in the ag- 
onies of death, Ulysses Grant presents a figure in 
history before which the coming ages will bow in 
reverential admiration. 



V 

THE RECIPROCAL OBLIGATIONS OF THE 
BENCH AND THE BAR 



Ui 



V 

THE RECIPROCAL OBLIGATIONS OF THE 
BENCH AND THE BAR 

[The following address was delivered at the annual dinner 
of the alumni of the University Law School on April i8, 1895, 
in response to the toast, "The Bench."] 

Mr. Chairman and Gentlemen: 

The topic naturally suggested by the toast you 
offer is the reciprocal obligations of the Bench and 
the Bar. The duty of counsel is by careful re- 
search and discussion so to present the case, on each 
side, as to enable the Court to render a right de- 
cision. In the performance of this function great 
scope is afforded for the display of learning and 
ability. The learning, however, should not be 
abused by an ostentatious prodigality of citation, 
but be seen only in the production of authorities 
pertinent and conclusive of the point. Bulk is not 
always weight; and the attraction of a brief may 
be in an inverse ratio to its length. And the ability 
exhibited should be manifest in an orderly marshal- 
ling of essential facts, in a firm grasp of the prin- 
ciples involved, in an accurate apprehension of the 
conflicting analogies, and in an argument clear, com- 
pact, and cogent. Forensic eloquence, though not 
of the kind fonnerly in vogue — florid, copious, and 

89 



90 ESSAYS AND ADDRESSES 

cleclaniator>' — is still a power, but simple, subdued 
and severely logical — pure reason aglow with an- 
imation. 

The first and indispensable requisite is to engage 
the attention of the Court ; and by no means is this 
condition so effectually fulfilled as by luminous 
statement, elegance of diction, methodical arrange- 
ment of topics, and earnestness of address. I say 
elegance of diction, because, after all, there is a fas- 
cination and an effect in mere felicity of phrase ; and 
I inculcate earnestness of manner, because the Hor- 
atian precept, '' Si vis me flere," is as imperative as 
ever. 

Having so presented his client's case, the advo- 
cate's office is at an end, and the judge occupies the 
scene with his imposing presence. The duty of the 
Bench to the Bar is primarily a patient attention to 
the arguments. *' Patience and gravity of hear- 
ing," says Bacon, '' is an essential part of justice, 
and an overspeaking judge is no well-tuned cym- 
bal." However able the judge, and however inex- 
I)cricnccd the lawyer, it stands to reason that he 
who has made a special study of the case must 
know it ])etter than he to whom it is just presented, 
and that so something may be learned even from 
the speech of the least expert advocate. Hence 
another maxim of the same great authority, namely: 
"Let not the judge meet the cause halfway, nor 
give occasion to the party to say his counsel or 
proofs were not heard." Again, the advocate is 
entitled to the most respectful treatment by the 



ESSAYS AND ADDRESSES 91 

Court. The amenities of the gentleman are noit in- 
compatible with the dignity of the judge. And this 
courtesy of the Bench to the Bar should not be pro- 
portioned to the eminence of the advocate; on the 
contrary, the younger, the weaker, and the ob- 
scurer the counsel the clearer his title to deferen- 
tial encouragement from the Court. It may be 
more perilous to provoke a duel of w^it and disputa- 
tion with a Choate than with a tyro, but for that 
very reason the judge should be prompter to chal- 
lenge Mr. Choate than the tyro. How crushing to 
modest merit a sneer or a frown from the Court, 
and how cruel, too ! How helpful a word of praise 
or a look of approval ! 

The briefs handed in, the judge should study 
them thoroughly and impartially, so that when he 
delivers his decision the defeated counsel will say 
that at all events the Court has tried to do justice. 
It is not for mortals never to err, and everything 
will be forgiven to the judge who has sought dili- 
gently and conscientiously to discover the right. 
Whether he go wrong from corruption or indo- 
lence, the miscarriage of justice is the same, and 
equally oppressive to the suitor. 

But while gravely meditating the case, the judge 
I need not prolong his deliberation to an Eldonian 
' period of gestation. Curia advisari vnlt should not 
be the synonym of interminable procrastination. In 
Magna Charta the sale of justice, the denial of jus- 
tice, and the delay of justice appear in the same 
category of unpardonable offenses. Indeed, gentle- 



92 ESSAYS AND ADDRESSES 

men. the judicial office is not of dignity only, but 
of awful responsibility. The dispensing of justice, 
the righting of wrong, the protection of innocence, 
the punishment of guilt — these are its functions; 
and what prudence, what labor, what vigilance, 
what learning, what courage, what probity, are in- 
dispensable to their faithful fulfillment! Be as- 
sured that the Bench has its trials and perplexities, 
and is not exempt even from the remorse of an un- 
just decision, though the effect merely of human 
fallibility. Bear with us, then, I pray you, if, under 
the strain of our arduous, anxious, and distracting 
duties, we sometimes lapse into error and occasion- 
ally give vent to ebullitions of ill-humor. Over the 
infirmities of the upright judge charity will cast its 
veil : and the worth of the magistrate may atone for 
the weakness of the man. 

Clentlcmcn of the Bar, the Bench greets you as 
brothers. It is only while the ermine is on that we 
assert the superiority of position. Descending from 
our official station, we stand on a level with the most 
recent of Dr. Abbott's graduates, and we solicit 
from them the familiarities of an equal friendship. 
Meanwhile, we invoke for you, one and all, the ut-] 
most fortune of the profession. Dat Galenus opes A 
(hit J list it iau us honor es; wealth is not the reward of j 
the lawyer, but by noble endeavor he may attain ai 
iK'tter prize — a name of renown and an influence! 
for good. 



VI 

THE BAR AND FORENSIC ORATORY 



VI 
THE BAR AND FORENSIC ORATORY 

[Address to the graduating class of the Albany Law School.] 

Mr. President^ and Gentlemen of the Grad- 
uating Class : 

The invitation with which you have honored me 
imposes an obHgation which I know not how other- 
wise so effectually to discharge as by communicating 
to you the resuhs of my observation of the means 
by which success at the bar is most surely achieved. 

You pause to-day at a critical stage of your pro- 
fessional career, when abandoned by the guidance 
of the wise and faithful preceptors who have con- 
ducted you hitherto, you are left to your own re- 
sources and to the direction of your own judgment, 
in the pursuit of the prize so eagerly coveted and yet 
so difficult of attainment. 

What if one who himself has run the race and 
has missed the goal; who, mindful of the infirmi- 
ties and limitations that hindered his efforts, and 
yet observant of the arts by which more skillful 
competitors have grasped the reward; what if he 
should generalize his experience in lessons of prac- 
tical utility to the adventurous but untried advo- 
cate — would you not accept the hand so extended 
to you, as of more help than any declamation, how- 

95 



96 ESSAYS AND ADDRESSES 

ever eloquent, upon any theme however fraught 
with interest and excitement? 

I will not affect to disguise from you the labors 
and difhculties that beset the path upon which you 
are alx)ut to enter. 

*' The immortal garland is not to be run for with- 
out dust and heat," and the victory you are to 
achieve will be the crown and recompense of in- 
finite toil; of obstacles overcome; of high faculties 
exerted to the utmost effect ; of many a miscarriage 
an<l much humiliation; of the solicitations of pleas- 
ure spurned for nobler but less attractive objects of 
desire; of a life consecrated in all its energies to the 
single aim of eminence and distinction in your 
chosen profession. But to the aspiring and reso- 
lute spirit the frowm of difficulty and danger is but 
a challenge to increase of exertion, and the trumpet 
call of ambition of more potency than all the beck- 
oning blandishments of indolence and ease. 

To sustain, then, the efforts and privations ex- 
acted as the condition of success at the bar, you 
nuist l>e animated by an enthusiasm for your pro- 
fession — an enthusiasm born not merely of a pas- 
sion for its distinctions, but nourished as well by 
an eager and insatiate delight in the study of the 
law. An avidity for the prizes of the profession is 
undoubtedly a powerful impulse in its pursuit, but 
the more constant as well as the nobler motive is a 
love for the profession itself. If you have em- 
braced the law with the ardor of a genuine affec- 
tion ; if you l:>e truly enamored of her austere anid 



ESSAYS AND ADDRESSES 97 

rugged beauties; if you be resolved to woo her with 
the assiduity of a heartfelt devotion : be assured 
that you will win her, and that she will repay your 
fidelity by a revelation of charms which she dis- 
covers only to her unselfish suitors, and by a frui- 
tion of reward which no other profession so pro- 
fusely lavishes upon its votaries. '' If you love me 
you will find me out," was the animating assurance 
of the fair doctor of Padua; and Tully tells us that 
" without a passionate inclination and an ardor like 
that of love, no man ever achieved anything great, 
especially distinction as an advocate." Enthusiasm, 
I repeat with emphasis — enthusiasm in the study 
of your profession is the first and fundamental con- 
dition O'f success in its pursuit. 

Enthusiasm, however, is but an incitement and 
support under the labors requisite for the attain- 
ment of the prizes of the profession. 

It is possible by sheer force of audacity, and the 
trick of a ready wit and the persuasions of a facile 
and fluent oratory, to masquerade awhile as a 
lawyer, and attract to one's self a profitable clien- 
tele; but without solid and extensive learning in the 
profession one cannot achieve a real and enduring 
eminence at the bar, nor long impose a fictitious 
reputation upon the public. For soon the preten- 
sions of the charlatan will be exploded by his mis- 
leading advice and the miscarriage of his causes; 
and his deceived and ruined clients will apply, per- 
haps too late, to some competent lawyer for the 
reparation of their fortunes. 



98 ESSAYS AND ADDRESSES 

How, then, are you to acquire this indispensable 
knowledge of your profession? Not otherwise, be 
persuaded, than by your faculties. It was the idle 
vaunt of an advocate of antiquity, as distinguished 
by vanity as by eloquence, that he could master the 
civil law in three days; but the conceit even of Ci- 
cero would have been abashed in the presence of the 
immense mass of jurisprudence extant in the age of 
Justinian. 

With the progressive development of civilization 
society becomes more complex, and the relations 
and transactions of life indefinitely multiply; and 
as over every relation and transaction of life a 
principle of law presides, we need not marvel at the 
compass and intricacy of jurisprudence at this ad- 
vanced age and in this enlightened country. The 
short and simple code which sufficed the necessi- 
ties of our rude forefathers in the parent country 
is expanded to the bulk of the immense and elabor- 
ate system with which you are to grapple. But 
indeed no finite intelligence can comprehend com- 
pletely the infinite volume and complexity of the 
law in this our day — nor, happily, is so impossible 
an attainment exacted of you. In practice you will 
— indeed you must — ■ address and restrict your- 
selves to some special departments of jurisprudence, 
and wliile with the learning of these you will fa- 
miliarly acquaint yourselves, of other outlying prov- 
inces you will be content to know the general scope 
and characteristic features. 

But to whatever branch of the profession you 



ESSAYS AND ADDRESSES 99 

confine your practice, you must be conversant with 
the law of evidence and procedure, for the rules 
of evidence and procedure are prevalent over the 
entire field of jurisprudence. Limited, however, 
as your researches will be, you cannot become pro- 
ficient in any department of the law except on the 
condition of diligent, devoted, conscientious study; 
and given an equivalency of intellectual endowment, 
the success of competitors for forensic distinction 
will be in the proportion of their respective attain- 
ments in legal learning. 

Obviously, then, it is of supreme moment to the 
aspirant for forensic eminence that he pursue that 
method of study which shall yield him the largest 
results in useful and abiding acquisitions. 

I assume that your diploma authenticates your 
acquaintance with the principles of jurisprudence; 
and yet throughout your professional career you 
will need to have habitual recourse to the works of 
the master authors. For perusal of such systematic 
treatises not only refreshes the memory, but is of 
especial utility in improving the style, in training 
the faculties, and in methodizing your learning. 
But for these results it is necessary that you be 
conversant with books of real merit only, lest by 
familiarity w^ith inferior writers your learning be 
vitiated by error, your taste corrupted, and your 
habit of thought degenerate into a loose and desul- 
tory succession of unconnected propositions. I 
could name authors — of no mean pretensions too 
— whose works are so destitute of every literary 



,00 ESSAYS AND ADDRESSES 

excellence, and of every logical process, that the 
only safeguard against their evil influence upon the 
mental di^scipline is in their dullness, which repels 
perusal. On the other hand, the literature of the 
law abounds in models and masterpieces of rhe- 
torical art, of correct reasoning, and of scientific 
methcKl — works which at once inform the under- 
standing, delight the literary sensibilties, and de- 
velop the faculty of argument. To the too-frequent 
selection of works of the former class as text-books 
in our schools I impute much of the repugnance to 
the study of the law evinced even by men of su- 
l)cri()r abilities; and I cannot but believe that, if the 
student were introduced to the profession under the 
ausjiices of the great masters, the fascinations of 
their genius would impel him to its pursuit with in- 
terest and avidity. 

It is. however, to the Reports that the practicing 
lawyer will have the most frequent and familiar re- 
course — ■ mainly, no doubt, because there only can 
l)c found an authoritative exposition of the rule of 
law that is to furnish the solution of the case in 
hand, but also because of the value of the study of 
KeiKjrts in the scheme of professional training. I 
kn(jw not a more profitable or more pleasing intel- 
lectual exercise than is afforded by the reading of 
cases in our l>est Reports. In the first place, the 
statement of the case in an instructive lesson upon 
that most important and at the same time most diffi- 
cult feat of forensic oratory — opus oratorium 
maximc; I mean a lucid presentation of the facts 



ESSAYS AND ADDRESSES loi 

upon which hinges the event of the htigation. 
Here we find omitted no single circumstance which 
bears upon the point in controversy; and no single 
circumstance introduced which, being irrelevant to 
that point, confuses the mind and, possibly, diverts 
it from the issue in agitation. Then, too, the es- 
sential facts are developed in due sequence and de- 
pendency, so as to conduct to the legal conclusion 
as by the force of an irrefragable syllogism. 

From the darkness and confusion of chaos to 
educe light and order is the achievement of omnipo- 
tence; and, in like manner, from a mass of compli- 
cated and discordant circumstances to cull out and 
collect the essential elements into a symmetrical 
and complete body of fact, luminous as the orb of 
day, is the highest exploit of the human intelligence, 
as illustrated by a Mansfield and a Marshall. With- 
out a perfect apprehension of the circumstances of 
a case, — analogous to the diagnosis of the physi- 
cian, — it is impossible to subject it to scientific 
classification, and to know by what principle of law 
it is governed ; and hence the ability to master and 
to marshal facts is the most useful and not the least 
admirable art in the equipment of the lawyer. Now 
by no means can this indispensable faculty be 
so effectually disciplined and developed as by study 
of the statements of competent reporters. The 
syllabus of such a reporter is in itself replete with 
interest and instruction — as an exposition in the 
shortest and clearest compass of the principles which 
legal reason evolves from the circumstances of 



102 



ESSAYS AND ADDRESSES 



the case. But it is as an auxiliary in the culture of 
the logical faculty that the Report is of especial 
utility to the student, in so much that the great 
master of dialectics recommended Smith's Leading 
Cases as the best lesson in the processes of ratiocin- 
ati(3n. Tlie subtle analysis, the compact force, the 
dehcate i>erception of analogy, the comprehensive 
grasp, and the elegant diction exhibited in the opin- 
ions of a Folger and a Rapallo — I speak of the de- 
parted only — incessantly meditated and anxiously 
emulated, can not but communicate to the student 
somewhat of the same superlative power of legal 
argumentation, and somewhat of the same felicity 
of expression and illustration. 

It is, then, by reading, by the study of books, and 
not otherwise, that the lawyer can so equip him- 
self for his profession as to secure the reward after 
which he aspires. 

lUit how shall he read? Is there an art of study 
by which the largest fund of information can be 
acquired with a minimum expenditure of labor? 
Obviously the same amount of mental power ex- 
erted during the same period, even by the same in- 
divi(kial, does not always yield equal results. And 
the dis])arity is still more apparent betw^een the ac- 
quisiticjns of different persons, though of equivalent 
capacities. It follows, therefore, that there are 
con(htions propitious and unpropitious to fruitful 
.study. Accorchngly, from Quintilian to the present 
(lay teachers have been formulating precepts for the 
conduct of the understanding in the acquisition of 



ESSAYS AND ADDRESSES 103 

knowledge. The one-hook maxim, multuin legere, 
non multa, — little reading and much reflection, — 
was zealously inculcated by Hobbes and Locke, while 
on the other hand other instructors of equal eminence 
and authority have, both by doctrine and example, il- 
lustrated the advantages of omnivorous reading. 
My own observation is that, while the helltio libro- 
rum may be a prodigy of erudition, his capacity of 
reception is developed at the expense of his active 
powers, and that he is not apt to be expert and ef- 
ficient in the use of his materials. Obviously, as a 
thorough mastery of a few books in each depart- 
ment of the law implies not only readier but ampler 
acquisitions of learning than can be accumulated 
by a discursive expatiation over a multitude of vol- 
umes, he who perfectly knows Kent's Commen- 
taries, for example, has in his head more law than 
is at the instant command of any man in the pro- 
fession; and then his learning, instead of being an 
undigested mass, is so classified and distributed in 
the memory, and is so incorporated into his mental 
constitution, as to be alw^ays available for use and 
application. 

But by what method may the student best fix and 
fasten in his mind the matter of the volumes he 
reads? One great authority, Dr. Johnson, advises 
trusting to memory alone, — arguing that a memor- 
andum only transfers the impression to paper, and 
so discharges the mind from the obligation of recol- 
lection, — ' while Professor Bain inculcates the utility 
of abstracts and annotations for the acquisition of 



104 ESSAYS AND ADDRESSES 

a clear and firm conception of the contents of the 
book. These two processes, you will remember, 
were combined in the education of the prince of 
orators, who, l^y transcribing Thucydides eight 
times, not only held the entire work verbatim in his 
mind, but absorbed and assimilated every particle 
of intellectual nourishment to be derived from that 
rich storehouse of eloquence and philosophy. 

For a plan of study my own experience suggests 
that one subject at the time be grappled and mas- 
tered, and that to this end you read the best author 
Ijy whom the topic is treated, in connection with the 
])rincipal cases by which it is illustrated and ap- 
j)lie(l; and that then you reproduce from memory 
a synopsis or summary of your acquisitions. By 
this procedure you will at once concentrate your 
faculties, systematize your learning and imprint it 
indelibly upon the mind. 

;\n(l as to the method of reading, I would incul- 
cate thai you pause upon a sentence until you com- 
pletely api)rehend its meaning, and u^xDn every argu- 
ment until you clearly perceive its processes; for 
m)t to understand is not to learn; and, besides, an 
habitual acquiescence in dim and vague conceptions 
inevitably darkens and debilitates the intellect. 
Hence I would earnestly admonish you of the fu- 
tility and evil of excessive study, since when the 
mind is fati^nied it grasps nothing firmly and ten- 
aciously; and the habit of listlessly wandering over 
the pages of a book is fatal to all intensity of appli- 
cation and cai)acity of acquisition. Only when the 



ESSAYS AND ADDRESSES 105 

attention is awake and the faculties fresh and alert 
can you read with effect, and to read without result 
is at once a waste of time and a depravation of the 
intellect. The moment you perceive that the mind 
refuses to take hold ; the moment that the spur is 
necessary to stimulate its flagging energies ; the 
moment you feel a vacillation and vagrancy of at- 
tention, — that instant lay aside your book, and 
for refreshment betake yourself to that best of re- 
storatives, the delights of literature. For repose 
is not always recreation ; and when the reason is 
weary it is best recuperated by the play of the facul- 
ties of taste and imagination. 

And yet, after all, it is a distressing reflection to 
the student how little he remembers of what he 
reads. It is the remark of a celebrated author — 
himself a man of uncommon erudition — that ''he 
who remembers most, remembers little compared 
with what he forgets " ; but he adds the encouraging 
admonition — " Do not resign all hopes of improve- 
ment because you do not retain what even the 
author himself has perhaps forgotten." So import- 
ant a faculty is memory, that Quintilian esteemed 
it the equivalent of genius, — ■ tantiim ingenii quan- 
tum inenwria, — and to the lawyer it is perhaps the 
most indispensable of mental powers. 

Many expedients are employed to fix the results 
of reading in the mind ; but, after all, " the true art 
of memory is the art of attention." What we have 
read with interest we remember — and we remem- 
ber it because its interest engaged our attention. 



io6 ESSAYS AND ADDRESSES . 

The vivid and enduring recollections of childhood 
and the forgetfulness of old age are equally pro- 
verbial, but the boy remembers because the inter- 
esting novelties of the world absorb his attention, 
and the octogenarian forgets because he has ceased 
to observe with interest the, to him, familiar and 
facbnir incidents of life. If, therefore, you con- 
cent rate your attention upon the book in hand^ and 
afterward revolve its contents in frequent medita- 
tion, you will retain them without the aid of any 
artifice of mnemonics. 

In that invaluable guide to the student, — Locke's 
tractate On tJie Conduct of the Understanding, — it 
is written that *' reading furnishes the mind with 
the materials of knowledge, but it is thinking that 
makes what we read our own"; to which add 
Baccm's injunction of frequent conference on the 
subject of our reading, and you have the precepts 
of the best teachers on the art of study. 

r>c assured that a system of study conducted on 
these principles and pursued with diligence will soon 
sufticiently accomplish you in the learning of the 
profession. 

F.<|uii)ped now with competent learning in the 
profession, you come to apply your knowledge in 
the conduct of causes. But here precepts are of 
slijiht utibly for your guidance, since skill in the 
trial of causes is not to be taught by art, but is to 
l)c acquired only by experience. The dearth of 
treatises u\\ the subject attests their uselessness. 

It i': a curious fact, by the way, that the best rules 



ESSAYS AND ADDRESSES 107 

for the examination of witnesses were propounded 
nineteen centuries ago by the author of the Insti- 
tutes of Oratory, and in modern times by a learned 
prelate of the Church of England — I mean Arch- 
bishop Whateley, in his book upon rhetoric. 

It is obvious to remark that, before engaging in a 
trial, you must be thoroughly master of the law and 
the facts of the case; that you know in advance 
what your own witnesses will testify; and, if pos- 
sible, anticipate the evidence of your adversary; 
that you never propound a question without a def- 
inite and predetermined purpose; that upon cross- 
examination especially you ask no question an an- 
swer to which may harm more than it can help you ; 
that you avoid leading an adverse witness to repeat 
his testimony in chief, for most certainly he will 
strengthen it, and with the effect of a recoil of your 
own engine ; that you preserve throughout perfect 
self-possession and control of your faculties; that 
you be not prematurely elated by an apparent ad- 
vantage, nor depressed or embarrassed by a sudden 
discomfiture; that you watch the vicissitudes of the 
trial with a sleepless vigilance; that you keep stead- 
ily and constantly in view the object of your exer- 
tion, namely, the success of your cause; that to 
that end all your efforts — every look, every action, 
every word — be directed ; that toward witnesses, 
hostile as well as friendly, you be uniformly courte- 
ous; that with your opponent you observe all the 
punctilios of chivalric debate; that to the jury you 
be respectful but not adulatory, and to the Court 



io8 ESSAYS AND ADDRESSES 

deferential but not obsequious; above all, that you 
maintain a perfect equability of temper, for when 
an advocate loses his temper he has already lost 
his cause. 

The constituent elements of forensic genius are 
identical with those of the military — " untroubled 
perspicacity in confusion, firm decision, rapid execu- 
tion, providence against attack, fertility of resource, 
and stratagem." 

With these very general — and because general, 
sterile, — precepts for the conduct of trials, I pass 
to the consideration of the crown and consumma- 
tion of professional excellence — I mean forensic 
oratory. 

That the eloquence of the bar has lost its ancient 
luster is the mournful refrain of the laudator tem- 
poris acli. Where now, he cries, are the Pinkneys 
and Wirts, the Emmets and Hoffmans, whose ora- 
tions, enriched by the spoils of literature and radiant 
with the colors of fancy, and glowing with the fires 
of passion, and resounding in the accents of a soul- 
stirring declamation, held enraptured audiences as 
by a spell of enchantment? And because of these 
none now survives, he concludes that forensic ora- 
tory has declined from its high estate; and because 
such eloquence is no longer extant, he infers that 
eloquence at the bar is no more in request. But 
the inference is invalidated by the assumption of the 
premise. The fact is, not that the eloquence of the 
bar has deteriorated, but rather that it has under- 
gone a modification. When men were more under 



ESSAYS AND ADDRESSES 109 

the dominion of emotion and imagination, they 
were affected by a style of oratory very different 
from that which prevails with a mind dominated 
by reason and intent upon the prosiac realities of 
every-day business ; but it is still true that eloquence 
is the art of persuasion, and that persuasion is the 
specific function of the advocate. 

The truth, then, is not that eloquence is a useless 
instrument for the lawyer, but that his purposes now 
require a different species of oratory from that 
which his predecessor found of such prevalent 
power; and that, instead of the passionate appeal 
and tropical luxuriance of a former day, he per- 
ceives that sobriety of statement and severity of 
logic are of more efficacy for conviction and in 
swaying enlightened and disciplined judgments to 
his ends. 

Nevertheless these are precisely the character- 
istics of the loftiest strain of forensic eloquence — 
for where else are displayed so close a grapple of 
the subject of discussion, such argumentative force, 
such austere disdain of tinsel embellishment, such 
concise simplicity of expression, as in the immortal 
oration on the Crown? And, in Erskine's argu- 
ment in support of the Rights of Juries, the same 
quality of pure intellectual power, the same contempt 
of meretricious ornament, and the same abstention 
from declamatory appeal, are conspicuous ; and 
yet this address to the Court is the highest effort of 
forensic oratory. 

Concede, then, that there is no longer a call for 



no ESSAYS AND ADDRESSES 

mere flourishes of rhetoric; still in the contentions 
of the bar at the present day there is ample scope 
and exigent occasion for eloquence in the truest 
sense — the power of persuasion. 

The ultimate object being to gain your cause, 
then, whether that end be to be compassed by con- 
viction of the reason or by influence upon the feel- 
ings, it is an indispensable condition of success that 
you secure and retain the attention of the tribunal 
addressed; otherwise the most powerful argument 
and the most moving appeal will be but an idle ex- 
penditure of breath. Now, nothing so effectually 
arrests attention as a visible earnestness of manner, 
revealed in tone, look and gesture — a passion for 
your cause, subdued but palpitating in every organ 
of expression. A frigid indifference in the speaker 
communicates its own languor to the hearers ; but his 
vivacity inflames them with a responsive animation. 
Mere intensity of feeling, however, will speedily 
fatigue and repel attention unless it be retained and 
rewarded by a commensurate excellence in the form 
and substance of the discourse. 

A lucid and logical arrangement of topics — so 
perspicuous as instantly to reveal their own signif- 
icance and force ; a diction choice but not fastidious, 
rich yet not redundant ; an exhibition of learning 
short of ])c(lantry, but sufficient for information ; 
a concatenation of argument, compact and convinc- 
ing; and an elocution graceful, animated, and earn- 
est — these are the qualities of speech by the concen- 
trated spell of which even the most austere and im- 



ESSAYS AND ADDRESSES iii 

patient court will be fascinated into an involuntary 
thralldom. 

With the learning requisite for the material of 
argument your professional reading will supply you ; 
logic will teach you the art of sound reasoning; 
moral philosophy will unveil to you the mysteries 
of the human heart and enable you to touch the 
springs of human passion; that copious and elegant 
vocabulary which is not only the fit and felicitous 
vehicle of worthy thought, but is in itself a beauty 
and a power, you will acquire by habitual converse 
with the classics of our language; the wealth and 
delicacy of fancy from which even a forensic dis- 
putation may borrow appropriate embellishment 
and interest, aye, and efficacy too, — for it is the 
feather that wings the arrow to the mark, — this 
exquisite charm of oratory will be imparted to you 
by the munificent matters of romance and poesy. 

The aim of oratory being immediate impression 
upon the audience, it results that its excellence is 
to be measured by its effect, and not by its conform- 
ity to the canons of criticism. The composition 
may be brilliant as a literary performance and yet 
altogether ineffectual as an oral address — it may 
be magnificent, but not oratory. Such were the 
splendid disquisitions of Edmund Burke — read 
even now with infinite admiration of their deep 
philosophy, their gorgeous imagery, and the im- 
perial beauties of their style, but heard at the time 
only by the few to whom the dinner bell did not 
offer more persuasive attractions. Such, too, was 



112 



ESSAYS AND ADDRESSES 



the speech of Sir James Macintosh in defense of 
Peltier, which, superb as an essay on the freedom of 
the press, was so devoid of oratorical effect that it 
failed to avert the conviction of a client in whose 
favor concurred the pride of patriotism and the 
indulgent sympathies of the jury. 

Obviously a composition submitted for perusal in 
the seclusion of the closet, addressed to a cool and 
critical judgment, and subject to the recurrences of 
revision and the pauses of meditation, exacts a per- 
fection of structure that shall satisfy the scruples 
of a prolonged and patient scrutiny, and allows of a 
subtility of argumentation, an elliptical brevity of 
expression, and a subdued moderation of tone and 
color which would be altogether inappropriate in 
spoken discourse; spoken discourse, of which the 
meaning must be apprehended in the instant or else 
be lost in the onward rush of thought and feeling 
— in which the nicer and more delicate felicities of 
style either escape observation or provoke reproof 
for lack of harmony with the serious business of 
the occasion, and to which an exaltation of passion 
is communicated by the contagious sympathies of 
the audience. 

So diverse and incompatible indeed are the re- 
quisites of written and oral composition, that Fox's 
test of a speech w^as. Does it read well? for if it 
reads well, then it is not a good speech. 

And here permit me to mention a circumstance 
which, as I conceive, largely explains the decadence 
of spoken eloquence at the present day — I mean the 



ESSAYS AND ADDRESSES 113 

presence of the stenographer. It is to him rather 
than to the audience that the orator addresses him- 
self; and, soHcitous about the critical judgment of 
the newspaper reader, he is inattentive to the condi- 
tions of immediate effect upon his audience. A 
gentleman of long service in the Federal Senate 
tells me that it is a common remark that the debates 
in secret session are far superior to those in public, 
and the cause is the absence of the reporter. 

The characteristic qualities of oral eloquence, es- 
pecially at the bar, are dictated by its end and oc- 
casion, namely, to sweep along the judgments and 
the feelings toward a definite conclusion ; and hence 
that '' agonistical " style, as the father of philo- 
sophical criticism distinguishes it — negatively, an 
abhorrence of the ornate and the glittering, of the 
pompous and the florid, of brilliant paradox, of 
turgid nonsense, of all the elaborate artifices of rhe- 
toric; positively, a steady and swift pursuit of the 
object in view, impassioned appeal, indignant excla- 
mation, defiant interrogation, argument condensed 
into self-evident and epigrammatic propositions 
rather than drawn out into a chain of consecutive 
ratiocination, amplification, and repetition under 
varied aspects of the salient points, a homely and 
idiomatic diction — all quivering with the vivacity 
and animation of an earnest and glowing spirit — 
these are the qualities of speech which constitute 
true and effective eloquence. 

Now, how are these excellencies of oratory to be 
acquired? For if it be true of the poet that he is 



1,4 ESSAYS AND ADDRESSES 

such bv the inborn prerogative of genius, it is other- 
wise with the orator ; who, whatever his native en- 
dowments, must still be disciplined into proficiency 
by assiduous culture: and who on the other hand, 
howsoever eml)arrassed and impeded by original in- 
firmities, may yet. like Demosthenes, attain by ar- 
duous endeavor to the highest perfection of elo- 
quence. Of all our faculties, probably that of ef- 
fective public speech is the most susceptible of 
growth and development, and like other faculties, 
it is best cultivated by use and imitation. 

It was by speaking at least once every night dur- 
ing the session of Parliament that the greatest of 
debaters declared that he acquired his unrivaled 

ability. 

If, then, you would become an orator, be per- 
suaded that only by practice in public speaking can 
you command the self-possession, the prompt con- 
ception, the fluency and felicity of expression and 
the grace of delivery that are essential to the char- 
acter. 

iVactice alone, however, only gives freedom and 
facility to the operation of your powers; and if you 
would augment those powers and wield them to the 
utmost effect, you must enrich and invigorate your- 
selves from the resources of the great masters of 
oratory. A constant contemplation of the ideals 
of elof|ucnce not only exalts the mind to a kindred 
cnuilation, but insensibly instructs it in the arts of an 
equal achievement. 

So, by the play of its pinions in preparatory ex- 



1 



ESSAYS AND ADDRESSES 115 

cursions, and by watching the mother bird in her 
loftier flights, the young eagle is trained and em- 
boldened to pierce the empyrean and soar amid the 
glories of the highest heaven. 

Happily for every purpose of instruction and 
emulation our literature is rich in all the models of 
oratory. In forensic eloquence the arguments of 
Erskine, in Parliamentary eloquence the speeches of 
Macaulay, in pulpit eloquence the sermons of Rob- 
ert Hall, in popular eloquence the harangues of 
O'Connell — exhibit to us all the resources of ora- 
tory in the utmost plenitude of genius. 

Nor need we travel abroad for examples and illus- 
trations of forensic oratory in its highest perfec- 
tion; for in the sublime passion of Patrick Henry, 
in the gorgeous vehemence of Choate, in the brilliant 
and abounding fancy of Prentiss, and in the majes- 
tic simplicity of Webster, we find at home every 
beauty and every power of eloquence, displayed with 
an effect not inferior to the achievements of the 
mighty masters of antiquity. 

But whatever the intrinsic beauty and power of 
the production, it is still an inert energy until oral 
utterance gives it the life and movement of an actual 
force. 

The characteristic excellence of a speech, as dis- 
tinguished from a written composition, consists in 
the delivery — and assuredly the whole effect of a 
speech depends upon its delivery. Hence the em- 
phasis with which, by practice as well as by precept 
— by practice in the untiring endeavor to catch 



ii6 ESSAYS AND ADDRESSES 

every grace of elocution; by precept in inculcating 
action as the first and the second and the third 
requisite of effective eloquence — hence the empha- 
sis with which the prince of orators urged the im- 
portance of delivery in the art of eloquence. And 
his great adversary bore equal testimony to the 
effect of delivery, when to the Rhodians, who ap- 
plauded his rehearsal of Demosthenes' oration, he 
exclaimed, " Could you have heard him deliver it! " 

Of the efficacy and value of delivery — ^compre- 
hending tone, look, and gesture — we have an in- 
teresting example in the preaching of Whitefield, 
whose sermons, though intrinsically of little or no 
worth, caught from the magic of his action and his 
voice an eloquence that thrilled the skeptical Boling- 
broke, that extorted applause from the fastidious 
Hume, and that warmed even the cool and cautious 
Franklin into a glow of involuntary enthusiasm. 

Precepts, I fear, are of little avail to the attain- 
ment of excellence in delivery; but these are too 
obvious to escape remark — distinctness of articu- 
lation, correctness of pronunciation, due modula- 
tion of voice, earnestness of manner, and a vivid 
animation of action. 

By all means in speaking banish every thought of 
self, and abandon yourself to the enthusiasm of the 
argument ; for though you may be thus betrayed into 
some eccentricities or extravagances, still they are 
your own, they are true to nature, and 'tis the touch 
of nature that kindles the sympathy of a kindred 
emotion. A frigid formality of delivery, however 



ESSAYS AND ADDRESSES 117 

conformable to the rules of art, is incompatible with 
all the effects of eloquence. Especially abstain from 
any verbal preparation of your discourse; for, be- 
sides that, if you have the thought it will leap into 
life by the appropriate expression — provisam rem 
verba sequenter. The least appearance of utterance 
from memory is fatal to the spontaneity in which 
consists all the enchanting illusions of eloquence. 

Animated by a generous enthusiasm for the law, 
expert in the tactics of a trial, enriched by judicious 
study with the learning of the profession, and ac- 
complished by appropriate culture in the art of elo- 
quence, you will win the renown extolled by the 
great master as the consummate distinction of the 
bar — of being " the first lawyer among orators and 
the first orator among lawyers." 

Gentlemen, the calling with which you have 
chosen to link the destinies of your life is indeed 
a noble vocation. Charged with the conservation 
of the highest and dearest interests of humanity, 
— ' the property, the character, the happiness, the 
liberty, the life of the citizen, — the consciousness of 
so lofty a commission cannot but impart to the pro- 
fession a commensurate elevation of thought and 
expansion of sympathies. 

Constrained by the variety of problems submit- 
ted for its solution to expatiate over the whole em- 
pire of civilization, it is dignified and adorned by all 
the learning within the reach of the human intelli- 
gence. 

Its end and aim being the chastisement of wrong 



ii8 ESSAYS AND ADDRESSES 

and the vindication of right, its abstract studies 
and its habitual practice ahke conduce to the educa- 
tion of the moral nature in conformity with the 
highest and purest ideals of justice. 

The scourge of triumphant iniquity and the 
refuge of oppressed innocence, its transcendent func- 
tions require an ability which no craft can baffle and 
an eloquence which no heart can resist. 

To be worthy of association in so noble a guild 
is proof sufficient of genius and virtue ; and so to be 
worthy, I doubt not, will be your endeavor through- 
out the career upon the commencement of which I 
beg to bestow my heart-felt benediction. 



VII 

INFLUENCE OF VIRGINIA IN THE FORMA- 
TION OF THE FEDERAL CONSTITUTION 



VII 



INFLUENCE OF VIRGINIA IN THE FOR^IA- 
TION OF THE FEDERAL CONSTITUTION 

[ The address before the Virginia Bar Association, published 
by the Association, is inserted in this collection upon the sup- 
position that the reader will be interested in the evolution of 
the Federal Constitution as framed by the fathers and ex- 
pounded by Marshall ; not, as it is now become, the supreme 
autocracy of the Executive, usurping the functions of other 
departments and nullifying the essential rights of the States. 
Sureh', it is opportune to recall the fundamental postulates, 
that the departments of Government are co-ordinate and inde- 
pendent ; and that the principle of our political system is " In- 
destructible union of indestructible States."] 

]\Ir. President and Gentlemen of the Virginia 
State Bar Association 

Although I live under another sky, remote from 
my native State, my heart, unchanged, is still true to 
the Commonwealth of Virginia. Her renown I 
cherish as a priceless heritage, and any derogation 
from her glory I feel as a filial bereavement. 

The eminence already attained by the American 
Republic in the rank of ruling Powers, its manifest 
destiny of illimitable expansion and indefinite dura- 
tion, and the coincidence it exhibits of public order 
with individual freedom, naturally attracts attention 
to the policy of which the eft'ects are so prodigious 
and beneficent. Hence the interest, everywhere 

121 



122 ESSAYS AND ADDRESSES 

apparent, in the Constitution of the Federal Govern- 
ment. Pohtical philosophers the world over have 
subjected it to the keenest criticism; and yet it chal- 
lenges unbounded and well-nigh universal applause. 
" It is the greatest refinement in social policy," de- 
clares Lord Brougham, " to which any state of cir- 
cumstances has ever given rise, or to which any age 
has given birth." With equal enthusiasm Mr. Glad- 
stone pronounces it " the most wonderful work ever 
struck off at a given time by the brain and purpose 
of man." And Mr. Bryce, in a strain of less fervid 
and more discriminating admiration, esteems it 
" above every other written constitution for the in- 
trinsic excellence of its scheme, its adaptation to the 
circumstances of the people, the simplicity, brevity, 
and precision of its language, its judicious mixture 
of definiteness in principle with elasticity in details." 

A rivalry of pretension to the authorship of a sys- 
tem of government so successful and so celebrated 
was inevitable, as time effaced the traces of its 
origin. Immediately after the event, indeed, the 
credit of its construction was awarded to Virginia 
by common consent; but latterly indications of an 
effort to despoil her of the distinction are visible in 
many directions. The task I propose to myself, in 
requital of your kindness, is to reassert the rightful 
claim of Virginia, and to vindicate it by the unim- 
I>eachable evidence of history. 

The genesis of the supreme law, I assume, is an 
interesting su1)ject of research with lawyers; proof 
that the Federal Constitution is essentially the off- 



ESSAYS AND ADDRESSES 123 

spring of Virginia cannot be an ungrateful offering 
to Virginians. If I recount incidents familiar to 
Virginians, they are incidents of which Virginians 
should never be weary in the recollection. 

For a time, as implied by Mr. Gladstone, the no- 
tion prevailed that the Federal Constitution was 
the conception and achievement of the convention 
of 1787; but now the accepted and the more scien- 
tific theory is, that it was not a creation, but an evo- 
lution — the normal and inevitable outgrowth of 
the antecedent political conditions of the country. 
Contemplated, however, in either aspect, whether as 
a design or a development, the influence of Virginia 
in its formation is equally conspicuous and decisive. 
If we view it as the product of the past, it embodies 
the spirit, the ideas, and the institutions of Virginia. 
If we take it as a contrivance of policy, we still see 
it formed and finished by the hand of Virginia. 

The colonists of Virginia were English, and they 
brought with them from their ancestral home the 
political instincts and traditions of that masterful 
race. In 16 19, a year before the Mayfloiver skirted 
the coast of Massachusetts, the Virginians inaugur- 
ated representative government on the American 
continent, '' and this example," says Story, " of a 
domestic parliament to regulate all the internal con- 
cerns of the country was never lost sight of, but 
was afterward cherished throughout America as the 
dearest birthright of freemen." Insisting upon the 
privilege of self-government, on the 21st of June, 
1 62 1, the Virginians extorted the concessions that 



i 



124 ESSAYS AND ADDRESSES 

" no orders of court shall bind the said colony un- 
less they be ratified by the General Assemblies." ^ 
They asserted the right of self-taxation and con- " 
trol of the public purse, protesting, in 1624, that 
" the Governor shall not lay any imposition upon 
the colony, their lands or commodities, otherwise 
than by the authority of the General Assembly, and 
employed as the said Assembly shall appoint." 
Though loyal to the King, in 1635 they ''thrust 
out " his governor for encroachment upon their 
rights, and substituted successors of their own 
choosing. Nay, after the downfall of monarchy 
they confronted Cromwell himself, and only yielded 
to his usurpation upon an honorable capitulation, 
acknowledging their submission as " a voluntary act, 
not forced or constrained by conquest," and guaran- 
teeing them " such freedom and privileges as be- 
long to the freeborn people of England." After 
the Restoration they broke out in open rebellion 
against the oppressions of government, and antic- 
ipated by a century the final and victorious strug- 
gle for the liberties of America. On the untimely 
death of their leader — the well-born, the gallant, 
the accomplished, the eloquent Bacon — their re- 
volt was quenched in blood; but, even so, without 
any surrender of their chartered rights. 

A long period of repose ensued, during which 
Virginia accumulated wealth, multiplied in popula- 
tion, reinforced her native virtues by incorporating 
in her community the Scotch-Irish Presbyterians 
anrl the German Lutherans of the Valley, and em- 



ESSAYS AND ADDRESSES 125 

bellished her material form with the social graces 
and the refinements of learning. And yet the ener- 
gies of her nature were not relaxed by the luxuries 
of an epicurean life; but, instead, were braced and 
disciplined in combats with her savage neighbor and 
conflicts with a more formidable foe. The victory 
of Point Pleasant and the defeat on the Alononga- 
hela attested equally her readiness for the imminent 
grapple with the power of Great Britain. 

So, in 1765, English as she was in affection and 
upon principle, by her resolutions against the Stamp 
Act, testifying her ancient and unalterable attach- 
ment to self-government, she sounded to her sister 
States the signal of resistance to foreign aggression. 
In 1773, by her committee of correspondence, she 
invited them to union in the common cause ; and she 
insured that union by a call of the General Congress. 
Her leadership in the great movement was recog- 
nized by the appointment of Pe}^on Randolph to 
the head of the civil and George \\^ashington to the 
head of the military establishment. On the 15th 
of May, 1776, she instructed her delegates in the 
Congress to propose a definitive renunciation of al- 
legiance to the British Crown; and, accordingly, 
on the 7th of June Richard Henry Lee, in her be- 
half, moved the resolution that " the united Colon- 
ies are and ought to be free and independent States." 
The resolution passed, Thomas Jefferson announced 
the advent of the new nation in his immortal mani- 
festo. Meanwhile, on the 15th of May, 1776, Vir- 
ginia alone, and of her own volition, outrunning the 



126 ESSAYS AND ADDRESSES 

initiative of Congress, abjured her old allegiance 
and assimied the attitude of an independent State. 
On the 1 2th of June her Declaration of Rights and, 
on the 29th, her plan of government were adopted 
— the first instance in recorded history of a written 
constitution for a free and independent community 
enacted by the sovereign will of the people. 

This memorable performance, be it observed, was 
not anticipated by the so-called constitutions of New 
Hampshire and South Carolina; because, first, they 
did not purport to be systems of government, but 
merely provisional expedients, a sort of models 
viz'cudi — " to continue," as they are careful to pro- 
test, " only during the present unhappy and unnat- 
ural contest with Great Britain ; " and because, sec- 
ondly, as organic laws they were essentially defec- 
tive in collecting the total political power in a single 
legislative body, and in providing no security for 
the inah'enable rights of the people. 

Far (Hfferent was the constitution of Virginia. 
Avowedly the fundamental law of a free and sov- 
ereign State reposing ultimately on the basis of the 
popular suffrage ; with a single executive, a bi-cam- 
eral legislature, an independent judiciary, and a Bill 
of Rights defining and safeguarding the immunities 
of the citizen, it presented a system of republican 
polity perfect in principle and complete in detail — 
the grand original of all subsequent State constitu- 
tions, and the model, as will be seen, to which the 
architects of the Federal government had recourse. 

In order to an adequate appreciation of the 



ESSAYS AND ADDRESSES 127 

agency of Virginia in the formation of the Federal 
Constitution, it is requisite that we recall two 
events in her history under the Articles of Confed- 
eration. 

The acceptance of those Articles was hindered 
by the reluctance of the recusant States to be over- 
borne by the preponderance of Virginia resulting 
from the disproportionate extent of her territory, 
and by a desire to partake the benefit of that terri- 
tory. They demanded, as the condition of their 
accession to the confederacy, that this domain 
should be the dowry of the nation, instead of the in- 
vidious possession of a single State. Now, the 
right of Virginia to the Northwestern territory was 
clear and incontestable, because held by the two- 
fold title of charter and conquest. Waiving the 
claim by charter, still the territory was the acquisi- 
tion of her own valor and genius ; and this, too, 
while she was contributing her contingent in troops 
and supplies to the maintenance of the common 
cause. The expedition of George Rogers Clark 
was her enterprise, was sustained by her resources, 
and was conducted to a successful issue without 
succor, or sympathy even, from the States which now 
coveted an equal participation in the advantages of 
the conquest. In her grasp on the conclusion of 
peace, it was assured to her by the principle of the 
treaty — uti possidetis. It was a region not only of 
immense expanse, but of a salutary climate and 
fabulous fertility ; and had Virginia, yielding to self- 
ish motive, declined to contribute it to the Union, 



ij8 essays and addresses 

her scepter would have had aii empire for its sup- 
port. But such ilHberal propensity was not in her 
nature; instead, rather a generous disdain of per- 
sonal interest in competition with the claims of 
country — and accordingly this princely domain she 
offered an oblation on the alter of patriotism. Thus 
did she sacrifice to the common w^eal the domain out 
of which were carved the States of Ohio, Indiana, 
Illinois, Michigan, and Wisconsin. By this act of 
unparalleled magnanimity Virginia not only re- 
moved an obstacle to the completion of the confed- 
eracy, but supplied an imperious motive to a closer 
and firmer compact between the States. With such 
a wealth of empire the common property of the 
States, which one would forfeit its portion by seces- 
sion from the partnership? Indeed, this gift by 
Virginia was a mighty cement of union. And 
more, in order to an effectual rule over so vast a 
region, a larger and more energetic action by the 
general government was necessary; — to which, 
again, a reformed and reinvigorated constitution 
was an indispensable condition. 

So it was that Virginia held together the States 
during the critical period of the confederation, and 
by the application of an urgent interest spurred them 
on to a more intimate connection. 

By another act of less but still important conse- 
quence, Virginia contributed to the aggrandizement 
of the Federal power. Under the guidance of Jay 
the Eastern States signified their assent to the oc- ri 
elusion of the Mississippi River by the Spanish gov- 



ESSAYS AND ADDRESSES 129 

ernment. This highway of access to the ocean 
closed to the enterprise of the great Valley, its treas- 
ures were locked up in sterile torpor ; population re- 
pelled ; a barrier interposed to the westward expan- 
sion of our empire, and the American republic 
dwarfed and diminished to an attenuated thread of 
States along the Atlantic seaboard. But Virginia, 
with a larger patriotism, and a more prophetic fore- 
sight, by her relentless resistance intercepted the ill- 
omened policy and secured eventually to the nascent 
nation a continent for the consummation of its ulti- 
mate grandeur. 

Such now were the magnitude and variety of in- 
terests soliciting the guardianship of Federal author- 
ity, that a stronger government became an instant 
and imperative necessity. 

The Articles of Confederation imported nothing 
more than a " league of friendship " ; and although 
not an altogether inadequate bond of union under 
the pressure of war, their insufficiency on the return 
of peace was a disquieting apprehension with 
thoughtful men. While the public spirit was aglow 
with patriotic fervor and the exigencies of the 
common cause forbade either languor or discord- 
ancy in the exertions of the associated States, — 
with all the resources of the country collected in the 
grasp of the military chieftain, — even a league of 
friendship might avail for the purposes of an ef- 
ficient administration. That peril past, that spirit 
extinct, and that energetic command relaxed, each 
State relapsed into a distinct community intent 



I30 ESSAYS AND ADDRESSES 

only upon its own interest and indifferent to the 
general welfare. 

Immediately on the close of the war the futility 
of the existing arrangement was disclosed, to the 
dismay of all patriots. Then was seen the utter in- 
competency of the confederation to the ends of 
government. With no executive and no judiciary; 
without power to enforce its requisitions, to raise 
armies or collect revenues, to fulfil its engagements 
at home or abroad, to regulate commerce or even 
to maintain its own dignity against rabble outrage, 
— it fell at once into helpless exhaustion and uni- 
versal contempt. 

Obvious was the alternative of either a firmer 
union and a stronger government on the one hand 
or on the other anarchy and ruin. The event was 
long in suspense; but ultimately Virginia inclined 
the balance to the side of safety, by a peremptory 
demand for a reformed Constitution and an invigor- 
ated government. 

The devotion of her magnificent domain to the 
common country, as already shown, supplied a mo- 
tive of union and an incentive to a sounder system. 
Ihit, coincidently, Washington imparted another 
and a mighty impulse toward a regenerated Consti- 
tution. Having conducted the war to a triumphant 
close, and having exhibited in his character all the 
virtue and all the wisdom of which humanity is 
capable, his reward was the universal esteem and 
affection of his countrymen, and an irresistible as- 
cendancy over their inclinations and opinions. His 



I 



ESSAYS AND ADDRESSES 131 

judgment was their oracle ; his will their law. The 
French minister declared that, in determining the 
nation to a stronger system, his word was of more 
weight than the collective influence of all other 
authority. Foreseeing the vanity of all he had ac- 
complished and the relapse of the country under 
despotism unless the Union were reorganized, he 
exerted himself with indefatigable activity to incul- 
cate the necessity of a new constitution. This ob- 
ject he pursued unremittingly, by personal discourse 
and private correspondence; and with commensurate 
effect. But his crowning act in disposing the nation 
to a reform of the Constitution was his circular 
letter to the governors of the States on retiring 
from the command of the army, in which, with im- 
portunate patriotism, he pressed the need of a 
stronger government. They all made response in 
the spirit of Trumbull, of Connecticut, who extolled 
" this last address of Washington as exhibiting the 
fundamental principles of an indissoluble union of 
the States under one Federal head." Communi- 
cated to the several legislatures, the appeal fired the 
heart of the nation to a passionate clamor for a new 
constitution. 

As in every crisis of American history Virginia 
had advanced to the front, so now she again took 
the lead in the march toward a renovated govern- 
ment. Simultaneously with her cession of terri- 
tory, she imparted to the Congress the power of im- 
post ; thus, in the language of Mr. Bancroft, " mar- 
shaling the United States on their way to a better 



132 ESSAYS AND ADDRESSES 

union." Still more decisively, Virginia summoned 
the Convention to recast the Constitution; and Vir- 
ginia first commissioned delegates to that auspicious 
assembly. 

Thus, on a review of the successive stages in the 
development of the republican system in America, 
we observe that it was Virginia who set the ex- 
ample of representative government and colonial 
autonomy; that it was Virginia who gave the first 
signal of resistance to British aggression; that it 
was Virginia who initiated union in the common 
cause; that it was Virginia who first adjured al- 
legiance to the English Crown and instituted a re- 
publican polity by the act of her sovereign will; 
that it was Virginia w^ho first proposed to the sister 
colonies a Declaration of Independence; that the 
sword of one son made good what the pen of an- 
other had proclaimed ; that for the sake, even of an 
imi)erfect federation, she surrendered a domain of 
imperial magnitude; that she opened a way for that 
career of progress and expansion which the repub- 
lic has since so gloriously pursued; that on the col- 
lapse of the confederacy she rescued the country 
fnjm chaos by summoning the States to the recon- 
struction of its fundamental law; in short, that Vir- 
ginia stimulated the desire, and provided the means, 
and prompted the effort, and furnished the ideal, 
for the l-'ederal Constitution of 1787. We are now 
to see her in the act of making it — moulding its 
fomi and fashioning its features, by her consum- 
mate statesmanship. 



ESSAYS AND ADDRESSES 133 

Forecasting on the eve of the convention the 
probable influence of Virginia on its action, her 
commanding attitude in the confederacy v^as a sig- 
nificant factor. In deference to her superior 
wealth, her greater population, her historic primacy 
among the States, and her foremost part in the 
achievement of independence, the initiative and as- 
cendency were accorded to her without dissent. 
*' As the Convention had met," says Hildreth, " on 
the invitation of Virginia, it seemed to belong 
to the delegates of that State to start the proceed- 
mgs. 

The group of distinguished men at the moment 
eminent in her councils certified her fitness for the 
great undertaking. Washington, Jefferson, Madi- 
son, Mason, Henry, Marshall, Monroe, and other 
names of hardly inferior note fomied a galaxy of 
genius that would have lent luster to any age and 
any country. 

The approved abilities and ripe experience of 
the men whom she especially commissioned for the 
work gave assurance that it would be done by them 
and be well done. Washington, in whose unerring 
wisdom the nation reposed its surest trust, — " I 
know," wrote Knox, " your personal influence and 
character is the last stake which America has to 
play " ; Randolph, delegate in the Congress of the 
confederation, and successively Attorney-General 
and Governor of the Commonwealth; Blair, long a 
burgess of the Colony, member of the convention of 
1776 and of the committee which reported the plan 



134 ESSAYS AND ADDRESSES 

of State government, member of the Court of Chan- 
cery and Chief Justice of the General Court ; Wythe, 
strenuous champion of independence in the House 
of Burgesses, signer of the Declaration in Congress, 
with Jefferson and Pendleton framer of the re- 
formed legislation for the State, and member of 
the Court of Chancery; Madison, also member of 
the Convention of 1776 and of the Committee to 
report a constitution for the State, member of the 
Legislature and of Congress, active and able and 
eminent in every station ; Mason, author of the first 
constitution for an independent American State, 
and of the first Bill of Rights ever formulated for 
a free community; ranking, by these achievements, 
with the most illustrious law-givers of the world : — 
such were the characters who, in behalf of Virginia, 
assumed the task of reconstructing the Federal gov- 
ernment. 

The problem before the Convention was complex 
— namely, first to frame a system of polity for the 
nation as a unit, as an integral personality; and, 
secondly, to adjust and reconcile the Federal suprem- 
acy with the sovereignty of the States. 

The primary task pertained to the form of gov- 
ernment and its operation upon the citizen; and as 
such simply, it involved no novelty of invention and 
no (lifTiculty in the execution. That the structure 
of Federal government should be republican was 
the imperative dictate of the political experience of 
the country. It was against the oppression of mon- 
archy that the colonies had revolted, and republi- 



ESSAYS AND ADDRESSES 135 

can institutions were already prevalent in every 
State. 

For the particular modification of the republican 
principle best adapted to the situation of the States 
the Convention was not at liberty to look abroad; 
nor, had it so explored, would anything have been 
discovered propitious to its purpose. During its 
deliberations the Swiss Confederacy was cited, only 
to be condemned ; the oligarchic republic of Venice 
was tottering to its fall ; and the Dutch institutions 
were signaled as a ruin to be avoided rather than an 
example for imitation. 

In origin, therefore, the form of the Federal gov- 
ernment was of necessity American; and its model 
was revealed in the then existing institutions of the 
States — a conclusion to which, notwithstanding 
the thesis he maintains. Dr. Ellis Stevens is con- 
strained by his researches into the sources of the 
Federal Constitution. '' After all,'' he admits, 
'' American political experience was the principal 
factor on which the Philadelphia Convention relied 
in its constructive task " ; and " the convention prac- 
tically took the model of colonial government as it 
had long and familiarly existed, and as adapted 
in the State governments then freshly set up, and 
applied it to the nation." And Dr. Boregeaud af- 
firms with emphasis that '' the institutions of the 
States are the edifice itself of which the Federal Con- 
stitution is but the completion." 

We have already seen that, in 16 19, Virginia fur- 
nished the Colonies with the exemplar of represen- 



136 ESSAYS AND ADDRESSES 

tative government, and that Virginia, first of the 
States, instituted a repubhcan system on the founda- 
tion of a written Constitution. This Constitution 
w-as the original of the organic acts of the other 
States; and it, with its progeny, was now before the 
Convention to supersede all speculative experiment 
by a model of wise design and demonstrated ef- 
ficiency. Its authors — Mason, Madison, and Blair 
— were on the floor of the Convention to commend 
it for adoption. That, in fact, it presented the pat- 
tern after which the Federal Constitution was 
framed is attested by their substantial identity in 
the essential attributes of republican polity — a 
single executive, a legislature of two chambers, an 
independent judiciary, popular representation, and 
official resix)nsibility. 

While the form of representative republican gov- 
ernment adopted by the Convention is but a duplicate 
of the system established by Virginia in 1776, so 
much of the Constitution as regulates the relations 
of the Union to the States is an absolutely original 
conception. 

Of alliances offensive and defensive, of leagues 
of friendship such as the Articles of Confederation, 
and of I'Y'deral associations with varying degrees of 
intimacy, examples were not wanting either in an- 
cient or modern times. But here is a system at 
once r\'(lcral and national; its constituents. States 
as well as individuals, acting coercively within the 
limits of the several sovereignties, yet so acting 
without restraint upon local autonomy or abatement 



ESSAYS AND ADDRESSES 137 

of its own efficiency, and without peril of collision 
between the concurrent forces. The expedient by 
which so felicitous and so marvelous a result was 
attained consists, not, as commonly taught, in a par- 
tition of powers between the Federal and the State 
governments, — for each retains its faculties in all 
their plenitude, — but in the distinction of objects to 
which those powers are directed; Federal func- 
tions being limited to purposes of national policy, 
and State functions restricted to the ends of local 
economy; and in an effectual provision against con- 
flict between the co-ordinate jurisdictions by ac- 
cording precedence and supremacy to the Federal 
authority. 

" This contrivance," says Judge Hare, '' so far as 
my knowledge extends, has no precedent in political 
history." With equal emphasis Professor Fiske ex- 
claims that '* thus at length was realized the sublime 
conception of a nation in which every citizen lives 
under two complete and well-rounded systems of law 
— the State law and the Federal law, each with its 
legislature, its executive, and its judiciary, moving 
one within the other, noiselessly and without fric- 
tion. It was one of the longest reaches of con- 
structive statesmanship ever known in the world." 

By whose genius the solution of the hitherto in- 
soluble problem of national unity with local self- 
government was achieved authentic history demon- 
strates to the world. In advance of the convention 
Madison sketched in outline a project of Federal 
union, which, approved by his colleagues, was pro- 



138 ESSAYS AND ADDRESSES 

pounded as the plan of the Virginia delegation. 
Two competing plans, the one of New Jersey and 
tlie other of Hamilton, were submitted; but, these 
cast aside with slight regard, the Convention pro- 
ceeded to construct a system on the principles of the 
\'irginia programme. After four months of ear- 
nest and exhaustive discussion the Virginia scheme 
emerged from the stormy debate altered in detail, 
but identical in substance; and, so modified, was 
promulgated by the Convention for acceptance by 
the States. That " Madison gave the outline of the 
plan which the Convention adopted," and that " the 
fundamental conception of our partly Federal, 
partly National government, appears throughout 
the Virginia plan as well as in the Constitution which 
grew out of it," are the explicit concessions of Hare 
and Fiske, critics from whom Virginia may not ex- 
pect anything of exaggerated commendation. 

llius did Virginia, acting upon the initiative al- 
lowed to her hegemony in the confederation, intro- 
duce to the Convention the true theory of Federal 
government; and thus is the Constitution of 1787 
but the articulation of the principles she pro- 
pounded. Nay, more, in the form of its acceptance 
by the States, — that is, by ratification in sovereign 
convention of the people as proposed by Madison, — 
she gave it a sanction and a stability of which it 
would have been destitute had a mere legislative 
approval, as suggested by Hamilton, been the only 
basis on which it reposed. 

Nor did Virginia's contributions to the Federal 



ESSAYS AND ADDRESSES 139 

structure cease with its completion by the Conven- 
tion. As transmitted to Congress for submission 
to the people, it was wanting in an essential safe- 
guard for the rights of the citizen and the State 
against Federal encroachment. But this defect was 
speedily repaired, and repaired from resources sup- 
plied by Virginia. 

Together with her acceptance of the Constitution 
she communicated to Congress a series of proposi- 
tions which she insisted should be incorporated with 
it, as guarantees of the rights of the States and the 
liberties of the people. Her claim of protection to 
the States was conceded in the Tenth Amendment, 
providing that " the powers not delegated to the 
United States by the Constitution, nor prohibited by 
it to the States, are reserved to the States respect- 
ively, or to the people." And in the first eight 
Amendments we find that each and every specifica- 
tion of popular immunity is but a repetition — oc- 
casionally in identical terms — of the principles em- 
bodied in the Bill of Rights proposed by Virginia. 
True, some of these principles other States had sub- 
mitted as a necessary part of the fundamental law ; 
but, then, those States had adopted them from 
George Mason's Bill of Rights — the earliest not 
only, but the most comprehensive and the most lum- 
inous formula of freedom yet extant in the world. 
So that, if not directly yet derivatively, the original 
amendments of the Constitution are distinctly the 
contribution of Virginia. 

Thus supplemented, the Federal Constitution af- 



140 ESSAYS AND ADDRESSES 

fi>r(lc(l in potency and promise a sufficient safe- 
f^aiard to all the great interests it was designed to 
conserve — the supremacy of the central govern- 
ment, the rights of the States, and the inalienable 
liberties of the people. 

It still remained, however, to discover and de- 
velop the principle by which these guarantees upon 
paper should be effectual to their purpose; for of 
what avail to assert Federal supremacy if it be im- 
pugned by the action of the States, or to reserve 
State rights if they be invaded by the national 
authority, or to declare inviolable the immunities of 
the citizen if they be infringed by the usurpation of 
government? Plainly a power, in some quarter, 
to restrict the several departments to their normal 
functions, and to arrest any aberration of the Fed- 
eral or State government from its legitimate orbit, 
was indispensable to the harmonious and beneficent 
operation of the complicated system. Obviously, 
too, the only method by which this necessary result 
could be accomplished was by nullifying any act, 
I'^fleral or State, which should contravene the pro- 
visions of the Constitution. 

Rut to what organ of government might this por- 
tentous power be safely intrusted? Not to the Ex- 
ecutive, already armed with more than regal ener- 
gies. Not to the Legislature, which, obedient to 
popular interest and popular passion, would make 
the mandate of its constituency the measure of 
legal autlKjrity. By the nature of its functions the 
Judicial Department alone was competent to the 



4 



ESSAYS AND ADDRESSES 141 

delicate and difficult task of expounding the sense 
of the Constitution, and adjudging what act, Fed- 
eral or State, was beyond its limitations. Without 
purse or sword — depending upon the Legislature 
for the means of its subsistence, and upon the Ex- 
ecutive for the enforcement of its decrees — its only 
power was moral ; and so its faculty of invalidating 
an unconstitutional act is fraught with no menace to 
the institutions or the liberties of the country. 
Then, too, the sanctity which in the American mind 
hallows the judicial office, and the reverent sub- 
mission with which the American people bow to the 
adjudications of private right, — and only in such 
adjudications can the validity of a law be deter- 
mined, — this homage rendered to the judiciary was 
an all-sufficient guaranty that its judgment discred- 
iting an unauthorized act would be accepted as the 
imperative voice of the Constitution itself. 

And yet, nowhere in the Constitution is there an 
explicit concession to the judiciary of power to in- 
validate an act. Federal or State, because repug- 
nant to its provisions. Implicit authority so to ad- 
judge was vehemently denied in the Convention, and 
in the year 1800 was challenged from the Supreme 
Bench by Justice Chase, the member most addicted 
to a latitudinarian construction of the Federal com- 
pact. 

To-day, however, the jurisdiction of any court, 
the humblest no less than the most august, to pro- 
nounce an apparent law no law, because contrary to 
the Constitution, is a familiar and fundamental 



142 ESSAYS AND ADDRESSES 

principle of American jurisprudence. And it is the 
feature of our political system that is peculiarly the 
marvel and admiration of foreign jurists and states- 
men. '* There is no precedent for it," says Sir 
Henry Maine, " either in the ancient or the modern 
world." De Tocqueville declares that " the power 
vested in the American courts, of pronouncing a 
statute to be unconstitutional, forms one of the 
strongest barriers which has ever been devised 
against the tyranny of political assemblies." And 
Dr. Borgeaud writes, in 1894, that " a fundamental 
difYerence separates American constitution juris- 
prudence from that which has grown up in Europe. 
While in Europe the act by which the legislative 
power might violate an article of the Constitution 
can only give rise to political redress, in the United 
States the judicial powder may decide upon the con- 
stitutionality of laws." 

While recognizing the utility of the institution, 
Bryne and Stevens discredit its novelty, affecting 
to see in it nothing more than the principle upon 
which English courts invalidate a by-law of a civil 
coq>oration because ultra vires, and in its applica- 
tion only an evolution from the law of agency. But 
wlierc is the analogy between a judicial interdict of 
municipal transgression and the nullifying by the 
ccnirts of the act of an independent and co-ordinate 
department of government? An ordinance beyond 
the scope of the municipal charter is void, because 
outside that charter there is no municipality ; a law 
of a sovereign State or of Congress approved by 



ESSAYS AND ADDRESSES 143 

the President is invalidated by judicial sentence, be- 
cause incompatible with the fundamental compact 
of union. In England an act of Parliament is the 
supreme law, anything in Magna Charta or the Pe- 
tition of Right to the contrary notwithstanding; 
and the validity of such act is subject to no test but 
the will of the Parliament. In the United States 
an act of Congress or of a Legislature, though 
authenticated by all the formalities of regular pro- 
cedure, is still to be in harmony with the organic 
law of the government; and if upon judicial inquiry 
it be found repugnant to that law, no matter what 
its apparent authority, its nullity is a necessary con- 
sequence. 

No, gentlemen, the function of the judiciary to 
annul an act of legislation for repugnancy to the 
Constitution is an American invention, and is due 
to the sagacity of the statesmen of Virginia. 

After expatiating upon the wisdom and benefi- 
cence of the institution, publicists are eager in 
tracing its origin, with the result that Rhode Island 
is distinguished as the place, and the year 1786 as 
the epoch, of the great discovery in political science. 
No share in the achievement is accorded to Vir- 
ginia by any commentator on the American Consti- 
tution — ■ either by Story or Kent or Cooley. And 
yet, in November, 1782, — four years before the 
Rhode Island case of Trevett v. Weedon — your 
own Court of Appeals, in Commonwealth v. Caton, 
reported 4 Call, page 5 — by a solemn judicial deliv- 
erance asserted the power of the courts. These are 



144 ESSAYS AND ADDRESSES 

the words : " To declare any act of the Legislature 
to be unconstitutional and void " ; and it is of mo- 
ment to remark that the doctrine was then vindi- 
cated by the argument upon which to this day it re- 
poses. 

Of no less significance are the facts that Chan- 
cellor W'ythe, by whom the power of the judiciary 
to cancel an unconstitutional enactment was first of- 
ficially promulgated, had for pupil John Marshall; 
that in 1788 John Marshall repeated his master's 
lesson on the floor of the State Convention, and that 
in 1803, as Chief Justice of the United States, the 
same John Marshall, sometime law student with 
George Wythe, delivered that judgment in Marbury 
V. Madison by which the principle he had learned 
under the tuition of Virginia was consolidated in the 
jurisprudence of the Union. 

In the face of the authentic records of history, no 
candid critic will dispute the initiative of Virginia 
in the development of the most original and the 
most salutary principle in the American system of 
constitutional government. 

Rut otherwise than in framing the Constitution 
«»f 1787, and in afterward calling into operation the 
I)riiiciple upon which its success was suspended, the 
inllucnce of Virginia was manifest in the formation 
of the Constitution. From the inevitable gener- 
ality of its expressions, and its reserve in enumera- 
tnig but not defining the powers communicated, it 
was open to a diversity of construction; and upon 
this alternative of interpretation depended its ef- 



ESSAYS AND ADDRESSES 145 

ficiency as an instrument of government. In the 
contemplation of a commentator inimical to its es- 
sential object, or incapable of penetrating beneath 
the surface of its text, it imparted authority of 
scarcely greater scope and vigor than was grudged 
to the defunct confederation. In the contemplation 
of a commentator sympathetic with its aims and 
competent to perceive the profound implications 
latent in its brief but pregnant phraseology, it was 
instinct with the energies of a self-sustaining and 
all-sufficient system. Of symmetrical form and 
heroic proportions, our organic law awaited the il- 
lumination of Marshall's mind, to draw from it the 
accents of transcendent power. He found the Con- 
stitution inanimate and inarticulate; he gave it life 
and light and a voice of sovereign command. Cur- 
tailed of his auxiliary expositions, the document it- 
self were a futile engine of Federal action and a 
fragile bond of Federal union. Hence, the not 
over-strained statement in the American Common- 
zvealth, that the Constitution is " the work of the 
judges, and most of all of one man, the great Chief- 
Justice Marshall." John Marshall, we remember, 
was a son of Virginia ; and by him she developed the 
Constitution into the full majesty of its might. 

Upon a retrospect of the circumstances and condi- 
tions out of which the Constitution of 1787 was 
evolved, and upon an impartial estimate of the agen- 
cies operative in its formation, the conclusion is ob- 
vious and incontrovertible that the authorship of 
that renowned instrument is justly ascribed to Vir- 



146 ESSAYS AND ADDRESSES 

ginia. It is founded upon institutions which she 
created ; it is the emanation of influences which she 
set in action — she summoned the convention to 
frame it; it was her ideal and inspiration; in form 
and substance it was her conception — her plastic 
hand fashioned its distinguishing features; she gave 
it the vigor that has sustained and impelled the 
Union along an unexampled career of grandeur and 
glory. 

The organic structure of government of which 
Virginia thus supplied the precedent, and the coin- 
cidence of Federal supremacy with State autonomy 
which she first realized, are not only prevalent al- 
ready on the American continent, but are destined 
at no remote period to subdue the civilized world to 
their liberal and enlightened sway. Whatever for- 
tune, therefore, may betide Virginia in the future 
posterity will perpetuate the remembrance of her 
great achievement; and so long as imperium et lib- 
er t as shall subsist as the ideal of government, the 
Federal Constitution of 1787 will remain her im- 
perishable monument. 

Mr. President and Gentlemen, if I revert to an 
early epoch for illustration of Virginia's worth, it is 
not because her after annals are wanting in great 
names and great deeds. Down to i860 her sons 
were ascendant on the national theater, and her 
counsels contnjlled the policy of government. 
1 hey were Virginians who augmented the power of 
the Union by the acquisition of Louisiana and the 
IHcjridas; and the valor of Virginians extended its 



ESSAYS AND ADDRESSES 147 

empire to the Pacific Ocean. He was a Virginian 
who, by estabhshing the independence of Texas, in- 
troduced the " Lone Star " into the constellation of 
States. He was a Virginian who issued the inter- 
dict against European conquest in America, and so 
consecrated the continent as the abode of demo- 
cratic institutions. He was a Virginian whose 
strong arm upheld the Southern Confederacy 
against the pressure of opposing millions, and whose 
martial exploits invest the " Lost Cause " with a 
halo of unfading luster *' si Pergama dcxtra de- 
fendi potiiit, ctiam hac defensa fuisset." 

From her firstborn to her latest, — from Wash- 
ington to Lee, unequal only in fortune, — the Old 
Commonwealth has maintained the high strain of 
her noble lineage. 

The Virginians are not degenerate. Prostrated 
by a great catastrophe and stunned for a time by the 
stroke, they will recover their unconquerable spirit; 
and, true to the traditions of their fathers, the gen- 
ius that ruled the Republic in the days of its fairest 
fame may again direct its destinies. 

The story of Virginia's renown abides with us, 
not as a solace in our decline, but as an incentive to 
emulation of her ancient virtues; that so we may 
transmit her glory to the succeeding generation 
without blemish and without abatement. 



i 



VIII 

THE PEOPLE OF THE STATE OF XEAV 
YORK VS. THE NORTH RIVER SUGAR 
REFIXIXG COMPANY 



VIII 

THE PEOPLE OF THE STATE OF NEW 
YORK VS. THE NORTH RIVER SUGAR 
REFINING COMPANY 

The subjoined argument is of interest and impor- 
tance, because : it was the first effort in any court of 
the country, by judicial decision, to break up a trust- 
combination ; it was successful ; and emphatically, be- 
cause it established that the principles of the Com- 
mon Law are adequate and effective to the destruc- 
tion of such combination. For, at the time there 
was neither Federal nor State statute invalidating 
such combination. 

Indeed, subsequent Federal and State statutes 
afford a protection to monopolies, since it is held that 
the statutes supersede the operation of the Common 
Law ; and that if monopolies be not wnthin statutory 
terms they are immune against attack — in analogy 
to the perpetual coypright of the Common Law, 
which the courts adjudged to be destroyed by the 
statute of Anne, limiting copyright to a definite 
period. 

COURT OF APPEALS 
The People of the State of 
New York, 
Plaintiffs and Respondents, 
against 
The North River Sugar Refin- 
ing Company, 
Defendant and Appellant. 

iSi 



15^ 



ESSAYS AND ADDRESSES 



Argument of Roger A. Pryor for the Respondents : 
1890. 

STATEMENT 

Appeal from judgment of the General Term 
of the Supreme Court in the first judicial depart- 
ment, entered upon an order affirming a judgment 
in favor of plaintiffs and an order denying a motion 
for a new trial. 

Action under the Code of Civil Procedure which, 
Section 1798, provides that in a suit by the Attorney- 
General the charter of a domestic corporation may 
be vacated upon the ground that it has either: 

First. — Offended against any provision of an act 
by or under which it was created, altered, or re- 
newed, or an act amending the same and applicable 
to the corporation ; or, 

Second. — Violated any provision of law whereby 
it has forfeited its charter or become liable to be 
dissolved by the abuse of its powers; or, 

Third. — Forfeited its privileges or franchises by 
a failure to exercise its powers; or, 

fourth. — Done or omitted any act which amounts 
to a surrender of its corporate rights, privileges and 
franchises; or, 

Fifth. — Exercised a privilege or franchise not 
conferred upon it by law. 

Trial by jury in conformity with the requirement 
of Section 1800. Judgment of dissolution in com- 
pliance with the provisions of Section 1801. 

Defendant offered no evidence, but upon the as- 
sumption of the insufficiency of the plaintiff's case, 



ESSAYS AND ADDRESSES 153 

moved the Court to direct a verdict in its favor ( f ol. 
244), and omitted to request the submission of any 
question to the jury. On motion of plaintiffs the 
Court directed a verdict for them (fol. 244). 

Points 



The judgment Is vitiated by no technical error. 

I. — Appellant is estopped to say that the case 
should have gone to the jury; and if there be any 
evidence to sustain the decision, it w^ill be upheld on 
appeal. (Dillon vs. Cockroft, 90 N. Y., 649; Prov- 
ost vs. McEnroe, 102 N. Y., 650; Ormes vs. 
Dauchy, 82 N. Y., 443 ; Trustees vs. Kirk, 68 N. Y., 
459, 464; Stratford vs. Jones, 97 N. Y., 589.) 

An uncontro verted state of facts presents a ques- 
tion of law which the Court not only may, but must, 
determine by a peremptory instruction to the jury. 
(Appleby vs. Ins. Co., 54 N. Y., 260; People vs. 
Cooke, 8 N. Y., 67; Lomer vs. Meeker, 25 N. Y., 
361; Dwight vs. Ins. Company, 103 N. Y. ; 341, 
359; Kelly vs. Burroughs, 102 N. Y., 93; Stratford 
vs. Jones, 92 N. Y., 589 ; Leggette vs. Hyde, 58 N. 
Y., 275.) 

The rule prevails in quo zvarranto to forfeit a 
corporate franchise. (People vs. Water ford, &c., 
2 Keyes, 329.) 

If the proof of a fact be so preponderating that a 
verdict against it would be set aside, the Court must 
direct a verdict in accordance with the evidence. 
(Dwight vs. Germania Ins. Co., 103 N. Y., 358.) 



154 ESSAYS AND ADDRESSES 

The verdict of the jury, although under the direc- 
tion of the Court, was a general verdict for the 
People; and, being a general verdict, it settles in 
favor of the prevailing party every fact litigated 
upon the trial. (Wolf vs. Life Ins. Co., 43 Barb., 
405; affirmed 41 N. Y., 620; Murphy vs. Lippe, 35 
Super. Ct., 542; Nichols vs. Martin, 35 Hun, 168, 
173; Koehler vs. Adler, 78 N. Y., 287.) 

" In the disposition of the case by this Court the 
facts most favorable to the plaintiff must be deemed 
to have been found in his favor." (Cady vs. Brad- 
shaw, 116 N. Y., 190.) 

2. — The solitary exception to evidence (fol. 1658) 
is plainly untenable. (Kelly vs. Doody, 116 N. Y., 
583; Sweet vs. Tuttle, 14 N. Y., 465, 472; DeCamp 
vs. Mclntire, 115 N. Y., 259, 266; Nicolay vs. Lin- 
ger, 80 N. Y., 54, 57 ; DeWolf vs. Williams, 69 N. 
Y., 621, 662; Nichols vs. White, 41 Hun 155; 
Knapp vs. Smith, 27 N. Y., 281.) 

The evidence was competent to prove an essen- 
tial fact in the case, namely, that defendant's stock 
was held by the board for the purposes declared in 
the Sugar Refineries Company deed. For what 
purpose the stock was held — whether for the in- 
terest of the combination or for another and differ- 
ent object — is plainly a question of fact, and a 
question not soluble by construction of the deed, 
but to be answered only by a witness cognizant of 
the puri)oses for which the stock was deposited with 
the board. Conceivably the stock might have been 
transferred for an object altogether foreign to the 



ESSAYS AND ADDRESSES 155 

purposes of the combination; and, if so, then it 
would not have been held under the provisions of 
the deed. Parole evidence to connect an instrument 
with its subject and object is always competent when 
necessary. If here the evidence were not neces- 
sary, i. e., \{ the deed exhibited the connection wnth 
the stock, then the evidence is harmless. 

B 

On the merits the validity of the judgment is 
unimpeachable — the unchallenged evidence exhibit- 
ing a clear case for the forfeiture of defendant's 
charter. 



The creation of a corporation is an act of sover- 
eignty (Wood's Field on Corporations, Sec. 6), and 
the consideration of the grant of corporate fran- 
chises is the public benefit. 

" The objects for which a corporation is created 
are universally such as the Government wishes to 
promote. They are deemed beneficial to the coun- 
try; and this benefit constitutes the consideration 
and in most cases, the sole consideration of the 
grant." (Marshall, C. J., in Trustees of Dartmouth 
College vs. Woodward, 4 Wheaton, 518, 637; The 
Binghamton Bridge, 3 Wall., 51, 73; 2 Waterman 
on Corp., Sec. 431.) 

'' In the granting of charters the Legislature is 
presumed to have had in view the public interest, 
and public policy is concerned in the restriction of 



156 ESSAYS AND ADDRESSES 

coqxjrations within chartered limits, and a depar- 
ture therefrom is only deemed excusable when it can- 
not result in prejudice to the public." (Gray, J., 
in Leslie vs. Lorillard, no N. Y., 531.) 

" Grants of franchises are the conferring on indi- 
vi(hials rights belonging to the whole people, and 
can only be justified by securing to the people, in the 
grants themselves, benefits equivalent to the rights 
which the grants take from them. This can only 
be done by enforcing a strict performance of all the 
beneficial conditions of such grants." (Bradish, 
Pres., in Thompson vs. People, 23 Wend., 559.) 

" The charters and franchises of modern times 
are contracts made for public consideration and 
advantage." (Id., 580, Senator Verplanck.) 

II 

Ilcnce, corporate franchises are granted in trust, 
and upon condition; in trust, on the one hand, that 
tlicy be exerted to the attainment of the object for 
which they are conceded, and on the other that 
they be not abused to the public detriment; upon 
the condition tliat for nonuser or misuser they may 
be reclaimed by the State in the appropriate judicial 
proceeding. 

" Franchises may be forfeited by a breach of the 
trust on which they were granted, and perversion of 
the end of the grant or institution. The perform- 
ance of the duties enjoined by the charter is a con- 
dition of the grant." (Rapallo, J., in People vs. W. 
T. & B. Co., 47 N. Y., 586, 592.) 



ESSAYS AND ADDRESSES 157 

" A corporation may be dissolved, for it is cre- 
ated upon a trust, and if that be broken it is for- 
feited." (Sir James Smith's Case, 4 Modern, 58.) 

" Franchises, being regal privileges in the hands 
of the subject, are held to be granted upon the con- 
dition of making a proper use of them; and may be 
lost or forfeited either by abuse or neglect." (2 
Black. Comm., 153.; Earl of Shrewsbury's Case, 9 
Rep., 46.) 

" All corporate franchises are granted upon con- 
dition that they should be duly executed according 
to the charter that settles the constitution." (Lord 
Holt in City of London vs. Vanacker, i Lord Ray- 
mond, 499.) 

" The primary object of the institution of a cor- 
poration is the public welfare, and the interest of 
the stockholders is but secondary; hence the will- 
ful frustration of that intention is a fraud on the 
public " — affimiing of a corporation whose stock 
had been absorbed by a rival corporation to prevent 
competition. (Appeal of the Electric Light, &c., 
Co. ; 122 Pa. St., 154; 9 Am. St. R., 81.) 

'' A corporation is made a body politic on the im- 
plied condition that it should demean itself faith- 
fully and honestly in the use of all its franchises." 
(People vs. Bristol, &c., 23 Wend., 235-6.) 

" The performance of the duties enjoined by the 
fundamental law by or under which it is created is 
in all cases a condition of the grant of corporate 
privileges ; and a failure, therefore, to perform any 
of these duties is a breach of the condition upon 



158 ESSAYS AND ADDRESSES 

which the corporation holds its franchises." Peo- 
ple vs. Fishkill, &c., 27 Barb., 445, 452.) 

'' That a corporation may be dissolved for a 
breach of trust is the settled doctrine at this day." 
(Kent, C, in Slee vs. Bloom, 5 Johns. Ch., 380.) 

" A corporation must come up to the substantive 
objects for which it was instituted. If it depart 
from any of these, it is guilty of a breach of trust." 
(People vs. Bristol, &c., 23 Wend., 236.) 

" Every private corporation undertakes and 
agrees, upon condition of forfeiture, that it will ex- 
ercise the rights and privileges conferred upon it in 
furtherance of the objects and purposes of its crea- 
tion, and not otherwise ; and that it will so manage 
and conduct its affairs that it shall not become dan- 
gerous or hazardous to the safety or well being of 
the State or community in and with which it trans- 
acts business." (Ward vs. Farwell, 97 111., 593-) 

*' The corporate franchise is granted upon condi- 
tion that it shall become void in case of misuser." 
(People vs. Phoenix Bank, 24 Wend., 433.) 

" Corporate rights and powers are the correlatives 
of corporate obligations and duties; constitute the 
consideration for the corporate franchises; and their 
performance may be exacted as a condition of cor- 
porate existence." (Mayor vs. R. R. Co., 113 N. 
Y., 311, 319.) 

" Franchises may be forfeited by breach of the 
trust on which they are granted, and perversion of 
the objects of the grant." (People vs. Dispensary, 
7 Lans., 306.) 



ESSAYS AND ADDRESSES , 159 

'' The grant of corporate franchises is necessarily 
subject to the condition that the privileges and fran- 
chises conferred shall not be abused, and that when 
abused or misemployed they may be withdrawn by 
proceedings consistent with law." (Ins. Co. vs. 
Needles, 113 U. S., 574.) 

'' A private corporation created by the Legisla- 
ture may lose its franchises by a misuser or nonuser 
of them; and they may be resumed by the govern- 
ment under a judicial judgment upon a q^io zvar- 
ranfo to ascertain and enforce the forfeiture. This 
is the common law of the land, and it is a condition 
annexed to the creation of every such corporation." 
(Terrett vs. Taylor, 9 Cranch., 52; 2 Kent Com., 
312; Slee vs. Bloom, 5 Johns. Ch., 366, 379; 
Com. vs. Bank, 21 Picker, 542 ; A. and A. on Corp., 
Sec. 774 (9th ed.) ; Ins. Co. vs. Needles, 113 U. S. 

574.) 

'' The grant to a corporation being made upon an 

implied pledge that the condition of it shall be ful- 
filled, when the public is affected by a breach of 
the condition, it is a violation by the corporation of 
its duty. The State is not required to prove an 
actual injury; it is a sufficient cause of forfeiture if 
the act be such as in the nature of things is calcu- 
lated to produce injury." (2 Waterman on Corp., 
Sec. 427.) 

" The public have an interest that a corporation 
shall not transcend the powers granted." (R. R. 
Co. vs. Keokuk Co., 113 U. S., 384.) 



i6o ESSAYS AND ADDRESSES 

III 

Any act of a corporation, in violation of law and 
to the public detriment, forfeits its franchises. 

" It is a sufficient cause of forfeiture, if the acts 
complained of are illegal either under the statute or 
at common law, or in violation of the inherent and 
fundamental principles or implied conditions of its 
existence." (State vs. R. R. Company, 45 Wise, 
590 ; Ches. & Ohio, &c., vs. Bait. & Ohio, &c., 4 Gill 
and Johns., 121.) 

The existence of a corporation may be annulled 
when it has " violated any provision of law where- 
by it has forfeited its charter or become liable to 
be dissolved by the abuse of its powers." (Code 
Civ. Pro., Sec. 1798, Sub 2.) 

" The statute provides that an information may 
be filed to procure the forfeiture of the charter and 
privileges of a corporate body for a violation of any 
provision of law in such way as to constitute a 
positive misuser." (People vs. Fishkill, &c., 27 
Barb., 452.) 

'' The misuser must be such a neglect or disre- 
gard of the trust, or such a perversion of it, as in 
some manner or in some degree to lessen its utility 
to those for whose benefit it was instituted " (i.e., 
the people), " or else to work some other public in- 
jury." (Thompson vs. People, 23 Wend., 581-2, 
Verjjlanck, Senator.) 

" Some misdemeanor in the trust, injurious to 
the public," is a sufficient ground of forfeiture. 
(Ich., 583-4.) 



ESSAYS AND ADDRESSES i6i 

IV 

Acts and contracts ultra vires the corporate au- 
thority are illegal; and where prejudicial to the 
public interests are grounds of forfeiture of the 
corporate franchise. 

I. — '" The act of incorporation is to them an en- 
abling act ; it gives them all the power they possess ; 
and when it prescribes to them a mode of contract- 
ing, they must observe that mode." (Marshall, C. 
J., in Head vs. The Providence Co., 2 Cranch., 

169.) 

In grants by the public, nothing passes by impli- 
cation. (U. S. vs. Arrendondo, 6 Peters, 736.) 

" The language employed (in the act of charter) 
defines their power and duties, and excludes by 
necessary implication . . . the adoption of 
any other method for the promotion of such busi- 
ness than those specially pointed out by the statute." 
(Ruger, C. J., in Nassau Bank vs. Jones, 95 N. Y. 
121.) 

" The rule of construction in this class of cases is 
that it shall be most strongly against the corpora- 
tion. Every reasonable doubt is to be resolved ad- 
versely. Nothing is to be taken as conceded but 
what is given in unmistakable terms, or by an impli- 
cation equally clear. The affirmative must be 
shown. Silence is negation, and doubt is fatal to 
the claim. This doctrine is vital to the public wel- 
fare." (Fertilizing Co. vs. Hyde Park, 97 U. S., 
666.) 



i62' ESSAYS AND ADDRESSES 

*' The charter of a corporation is the measure of 
its powers, and the enumeration of these powers im- 
pHes the exclusion of all others." (Thomas vs. R. 
R. Co., loi U. S., 82; Green Bay, &c., vs. Com- 
pany, 107 U. S., 98; Pratt vs. Short, 79 N. Y., 437.) 

This elementary common law principle, that a 
corporation can exercise no power not expressly 
granted, or necessarily implied, is made a positive 
prohibition of statute, which prescribes that " no 
corporation shall possess or exercise any corporate 
powers, except such as are given or enumerated, or 
are necessary to the exercise of the powers so given 
or enumerated." (First Part Rev. Stats., Title HI ; 
Ch. 18, Sec. 3; Laws 1861, Ch. 170; Milbank vs. 
R. R. Co., 64 How., 24.) 

Hence, an act ultra vires is an infraction of posi- 
tive law. 

And this statute declares the public policy of the 
State (Morris, &c., vs. R.R. Co., 20 N. J. Eq., 542) ; 
and makes an unauthorized corporate act illegal. 
(Ashbury, &c., vs. Riche, L. R., 7 H. of L., 653.) 

2. — " Judgment of ouster and dissolution has al- 
ways been the punishment for the wanton violation 
of a charter; and it may be made to follow whenever 
the proper public authority shall see fit to invoke its 
application." (Nat. Bank vs. Matthews, 98 U. S., 
621, 629.; Bank vs. Whitney, 103 U. S., 102.) 

" H the utility of the corporation be lessened, or 
if any injury result to the public, by an act which 
it is not authorized to do, it is a forfeiture." (Bank 
vs. State, 6 Smedes and M., 599, 623.) 



ESSAYS AND ADDRESSES 163 

'' When a corporation does acts which it is not 
authorized or is forbidden to do, the State may for- 
feit its franchises and dissolve the corporation." 
(Taylor on Corp., Sec. 457, 289, 459; People vs. 
Utica, 15 Johns., 358.) 

For, " The public has an interest in the proper ad- 
ministration of the powers conferred by the act on 
the corporation." (East Anglia, &c., vs. R. R. Co., 
II C. B., 775.) 

'^ A corporation may incur a forfeiture of its 
franchises by the doing of an illegal act. Any act 
of a corporation which is forbidden by its charter, 
or by a general rule of law, and strictly every act 
which the charter does not expressly or impliedly 
authorize, is unlawful ; and if the doing of such act 
is an injury to the public, it may be sufficient ground 
of forfeiture." (2 Morawetz on Corp., Sec. 1024.) 

An act iiltra vires is the usurpation of a fran- 
chise, and cause of forfeiture. (People vs. Trus- 
tees, 5 Wend., 211.) 

" A contract with a corporation may be binding 
on the parties, though it was an abuse of the cor- 
porate powers for which the corporation is answer- 
able to the government which created it." (Bank 
vs. Hammond, i Rich. (S. C), 288; Southern vs. 
Lanier, 5 Fla., 100; Silver Lake vs. North, 5 John. 
Ch., 373.) 

" The contracts of corporations which are not 
authorized by their charters, are illegal, because 
they are made in contravention of public policy." 
(Selden, J., in Bissell vs. R. R., 22 N. Y., 285.) 



i64 ESSAYS AND ADDRESSES 

\\'hcre corporations abuse their powers, e. g., by 
acts ultra vires, " the State may interpose and re- 
claim their charters." {Id., 259.) 

*' A contract made by a corporation in violation 
of the terms of its charter is ultra vires, and void as 
against public policy." (President, &c., vs. R. R. 
Co., 7 Lans., 241.) 

An act ultra vires is an abuse of the corporate 
franchise. (Thomas vs. City, 12 Wallace, 356; 
Green's Brice, 708-9 — 2d ed.). \ 

"" The word ' unlawful ' as applicable to corpora- 
tions, is not used exclusively in the sense of malum 
in se or malmn prohibitum. It is also used to desig- 
nate powers which companies are not authorized 
to exercise, or contracts which they are not author- 
ized to make, or acts which they are not authorized 
to do — such acts, powers and contracts as are ul- 
tra vires.'' (People vs. Chicago Gas Trust Co., 22 
Chicago Legal News, 108, 41 Albany Law Journal, 

58.) 

A corporation may be dissolved when it has " ex- 
ercised a privilege or franchise not conferred upon 
it by law" (Code Civ. Pro., Sec. 1798. Sub. 5), or 
*' offended against any provision of the act under 
which it was created" (Sub. i), or when it ''has 
violated any provision of law whereby it has be- 
come liable to be dissolved by abuse of its powers " 
(Sub. 2). 

" Considering the authority which the Attorney- 
General has, by suit, to forfeit the franchises of 
corporations for misuse or abuse, and to regulate 



ESSAYS AND ADDRESSES 165 

and restrain them in the exercise of their corporate 
rights, httle danger is to be apprehended from the 
overgrowth of their power, or their monopolistic 
tendencies." (Ruger, C. J., in People vs. O'Brien, 
III N. Y., I.) 

A common law ground of forfeiture is still avail- 
able though not within the statute. (People vs. 
Bristol, 23 Wend., 222; State vs. R. R. Co., 45 
Wise, 589; People vs. Palmer, 109 N. Y., no.) 



The rule that an illegal or unauthorized act is 
sufficient ground of corporate forfeiture, is abun- 
dantly illustrated by adjudicated cases. 

In the King vs. The Mayor and Commonalty of 
London, 8 Howell's St. Tr., 1078, " the Great Quo 
Warranto Case " (Life of Chief Justice Saunders 
by Lord Campbell), it was argued by Treby and 
Pollexfen for the defendant that the charter of a 
corporation was not liable to forfeiture for an act 
ultra vires or contrary to law; and that the un- 
authorized or illegal act was not predicable of the 
corporation — a mere ens legis, incapable of action 
— but of the individuals composing it ; who alone 
were accountable to the law. 

But the contention was discredited by the Court, 
and the principle established, that the act of its 
constituents is the act of the corporation, and that 
a corporation incurs the penalty of forfeiture by an 
act illegal or ultra vires. 



1 66 ESSAYS AND ADDRESSES 

However odious this decision in its political as- 
pect, its validity as a legal proposition stands un- 
challenged to the present day. (Thompson vs. The 
People, 23 Wend., 572.) 

So, when a bank chartered to do business in one 
county of the State established a branch in another 
county, it became forfeit. ( People z's. Bank, Doug- 
lass (Mich.), 282.) 

So, when a college chartered in one place estab- 
lishes a medical school in another. (The Peo- 
ple z's. Geneva College, 5 Wend., 211.) 

So, extortionate charges by a railroad company. 
(Attorney-General vs. R. R. Co., 35 Wise, 432, 

532.) 

So, a neglect by a bank to make a report required 

by law. (State vs. Bank, 5 Ohio St., 171.) 

So, violating a restriction on the rate of interest 
upon loans. (Com. vs. Bank, 28 Penn. St., 383; 
State vs. Bank, 33 Miss., 474.) 

So, keeping its principal place of business, officers 
and records in another State. (State vs. R. R. Co., 
45 Wise, 580.) 

So, dividing with an agent who procured a legis- 
lative appropriation to the corporation. (People 
vs. Dispensary, 7 Lans., 304.) 

So, embezzlement of funds on deposit with a 
bank. (Bank vs. State, i Blackf. (Ind.), 267.) 

So, omission of a duty expressly imposed by law% 
c. (/., to make a report. (Attorney-General vs. R. 
R.Ccj., 6 Iredell (Law), 469.) 

So, when an insurance company carries on bank- 



ESSAYS AND ADDRESSES 167 

ing operations. (People vs. Utica Ins. Co., 15 
Johns., 358.) 

So, the unauthorized lease by a railroad company 
of its road, rights and franchises. (State vs. A. & 
N. R. R. Co., 4 R. R. & Corporation Journal, 86; 
Penn. Co. vs. St. Louis, &c., R. R. Co., 118 U. S. 
290.) 

So, a railroad corporation forfeits its charter, on 
quo vjarranto, by ceasing to operate a part of its 
route. (People vs. The R. R. Co., 24 N. Y., 261.) 

So, a corporation forfeits its franchise by holding 
property in violation of the restraints of its char- 
ter. (Matter of McGraw, iii N. Y., iii.) 

So, if a railroad company abandon a portion of 
the line it was incorporated to operate, it will be 
dissolved. (People vs. R. R. Co., 24 N. Y., 261.) 

For further instances and illustrations of grounds 
of forfeiture, see 2 Kyd on Corp., 479 et seq.; A. 
and A. on Corp., Sees. 774-776; 2 Waterman on 
Corp., Sec. 427; Green's Brice, 787; People vs. 
Bristol, 23 Wend., 233-250; State vs. R. R. Co., 8 
Am. St. R., 188-190, note by Freeman. 

VI 

Agreements tending to monopoly, i. e., " any 
combination among merchants to raise the price of 
merchandise, to the detriment of the public " (Bou- 
vier's Law Diet., " Monopoly") are illegal. (Peo- 
ple vs. American Sugar Refining Company, 7 Rail- 
way and Corporation Law Journal, 83, ; Richardson 
vs. Buhl, Id., 89; People vs. Chicago Gas Trust, 41 



i68 ESSAYS AND ADDRESSES 

Alb. L. J., 68; Anderson vs. Jett, 41 Alb. L. J., 103; 
Leonard vs. Poole, 114 N. Y., 371 ; Arnot vs. Coal 
Company, 68 N. Y., 559; Stanton vs. Allen, 5 
Denio, 434; Clancy vs. Salt Company, 62 Barb., 
395 ; Hooker vs. Vanderwater, 4 Denio, 349 ; Texas 
& P. Ry. Co. vs. Southern P. Ry. Co., 6 Southern 
Reporter 888, 891, La. Supreme Court, 1889.) 

People vs. Fisher, 14 Wend., 9-19; Colles vs. 
Trow Company, 11 Hun, 397; Watson vs. The 
Companies, 52 How., 348; Coal Co. vs. Coal Co., 
68 Penn. St., 182; Salt Co. vs. Guthrie, 35 Ohio 
St., 672 ; Croft vs. McConoughy, 79 111., 339 ; Santa 
Clara vs. Hayes, 76 Cal., 387; 9 Am. St. R., 211; 
Bank vs. King, 44 N. Y., 87; Case of Monopolies, 
II Coke, 84; Raymond vs. Leavitt, 46 Mich., 447; 
India Bag Co. vs. Koch, 14 La. Ann., 168; Ray vs. 
Alackin, 100 111., 246; People vs. Stephens, 71 N. 
Y., 545; Marsh vs. Russell, 66 N. Y., 288; Hart- 
ford, &c., vs. R. R. Co., 3 Robt. 411; Hilton vs. 
Eckersley, 6 Ell. & BL, 47 ; Central, &c., vs. Collins, 
40 Ga., 582; Hoffman vs. Brooks, 11 Weekly Law 
Bulletin, 258. 

And, in all the cases adjudging monopoly agree- 
ments and combinations to be illegal, the ground of 
decision is, that they tend to the public prejudice, 
by preventing competition and enhancing prices. 

" Monopolies are favorites neither with Courts 
nor people. They operate in restraint of competi- 
tion, and hence are, as a rule, detrimental to the 
I)ublic welfare." (Electric Company, 9 Am. St. 

R., 82.) || 



ESSAYS AND ADDRESSES 169 

'' Free competition is the life of business ; and all 
combinations among persons or corporations for the 
purpose of raising or controlling the prices of mer- 
chandise, or any of the necessaries of life, are 
monopolies and intolerable, and ought to receive the 
condemnation of all courts." (Richardson vs. 
Buhl, 7 Railway & Corp. Jour., 96.) 

" Monopolies are destructive of individual right 
and public interests." (Metcalf vs. Brand, 9 Am. 
St.^^R., 289;86Ky., 331.) 

" The natural law of supply and demand is the 
best law of trade." (State vs. Goodwill, 41 Alb. 
Law Journal, 53, West Virginia Supreme Court.) 

" Rivalry is the life of trade. The thrift and 
welfare of the people depend upon it. Monopoly is 
opposed to it all along the line." (Anderson vs. 
Jett, 41 Alb. L. Jour., 104.) 

" Monopolies are justly odious, as they operate 
not only injuriously to trade, but against the gen- 
eral prosperity of the country." (Charles River 
Bridge vs. Warren Bridge, 11 Peters, 567.) 

" I hold it to be an incontrovertible proposition 
of both English and American public law, that all 
mere monopolies are odious and against common 
right. . . . Monopolies are the bane of our 
body politic at the present day. In the eager pur- 
suit of gain they are sought in every direction. 
They exhibit themselves in corners in the stock 
market and produce market and in many other 
ways." (Bradley, J., in Butchers' Union vs. Cres- 
ent. III U. S., 766.) 



i;o ESSAYS AND ADDRESSES 

"The statute against monopolies (1623) is the 
magna cJiarta of British industry." (2 Kent, 271, 
IMarginal Note c.) 

" It is against the general policy of the law to 
destroy or interfere with free competition, or to per- 
mit such destruction or interference. An unauthor- 
ized monopoly, therefore, is against public policy 
as destroying or interfering with free competi- 
tion." (Stewart vs. The Company, 17 Minn., 

372.) 

" A contract which tends to create and perpetuate 

a monopoly is against public policy." (Gas Co. vs. 

Gas Co., 2 Am. State Reports, 124.) 

" In its very nature, a right to exclude competi- 
tion is injurious to the public." (City vs. Gas 
Light Co., 70 Mo., 69.) 

" Competition is the life of trade, and whatever 
destroys or even relaxes competition in trade is in- 
jurious if not fatal to it." (4 Denio, 353 ; 14 
Wend., 19.) 

" Public policy favors competition in trade, to 
the end that its commodities may be afforded to the 
consumer as cheaply as possible ; and it is opposed 
to monopolies, which tend to enhance market prices 
to the injury of the general public." (Salt Co. vs. 
Guthrie, 35 Ohio St., 666.) 

" There are three inseparable incidents to every 
monopoly: that the price of the commodity will be 
raised ; that the commodity is not so good and mer- 
chanta1)le as before ; that it tends to the impoverish- 
ment of artificers and others " ; and so a charter of 



ESSAYS AND ADDRESSES 171 

monopoly was held void, as against common right 
and the liberty of the subject. (The Case of 
Monopolies, 1 1 Coke, 84. ) 

" With results naturally flowing from the laws of 
supply and demand, the Courts have nothing to 
do ; but when agreements are resorted to for the 
purpose of taking trade out of the realm of com- 
petition, the Courts cannot be successfully invoked, 
and their execution will be left to the volition of 
the parties thereto." (Santa Clara, &c., vs. Hayes, 
76 Cal., 387, 9 Am. St. Rep., 211.) 

In Richardson vs. Buhl, 7 Railway and Corp. 
Journal, 89, the Supreme Court of Michigan (1889) 
held of a corporation organized to absorb other 
match manufactories, '' that such corporation is 
unlawful and against public policy, its object 
being to prevent competition, and to control the 
price of an article of necessity." In People vs. 
Chicago Gas Trust Company, 41 x^lbany Law Jour- 
nal, 68, the Supreme Court of Illinois (1889) ruled 
the same point. 

In the People vs. The American Sugar Refining 
Company, 7 Railway & Corp. Law Journal, 83, the 
Superior Court of the City of San Francisco 
(1890) held of this identical combination that it 
constitutes a monopoly and an unlawful business 
(p. 86), and that connection with it forfeited a 
corporate charter. 

In Anderson vs. Jett, 41 Albany Law Journal, 
103, the Kentucky Court of Appeals ( 1889) held of 
an agreement between owners of two rival steam- 



\yz ESSAYS AND ADDRESSES 

boats, to divide the net profits of each in a certain 
proportion, each bearing its own expenses, neither 
to sell his boat without notice to the other, and the 
one selling out not to enter the trade for a year, 
that its object and effect was to prevent competition 
and a consequent reduction of charges, and so was 
void as against public policy. 

In Leonard vs, Poole, 114 N. Y., 371, this Court 
(Second Division) held that a combination for the 
purpose of raising the price of lard was " an unlaw- 
ful plot " (378), and an " indictable misdemeanor " 
(377)1 under section 168 of the Penal Code, because 
injurious to trade and commerce. 

In Mill and Lumber Co. vs. Hayes, 76 Cal., 387 ; 
9 Am. St. R., 211, the Supreme Court of California 
denounced as against public policy and void a con- 
tract '' entered into for the purpose of limiting the 
supply of lumber and increasing the price thereof, 
and giving one of the contracting parties control of 
all lumber near a particular town in the year desig- 
nated, and to control the supply of lumber for that 
year in the counties mentioned in the contract." 

An agreement between shareholders not to sell 
their respective stock without the concurrent con- 
sent of all is void, because " in restraint of trade 
and against public policy." (Fisher vs. Bush, 35 
Hun, 641.) 

An agreement by several firms not to sell, except 
with the consent of the majority, is a combination 
to enhance price, and unlawful. (India Bag Co. 
vs. Koch, 14 La. Ann., 168.) 



ESSAYS AND ADDRESSES 173 

In Arnot vs. Coal Company, 68 N. Y., 558, the 
purpose of the arrangement was '' to artificially en- 
hance the price" of coal; and the Court held that 
" a combination to effect such a purpose is inimical 
to the interests of the public, and all contracts de- 
signed to effect such an end are contrary to public 
policy, and therefore illegal " ; and that this prin- 
ciple " is too well-settled by adjudicated cases to 
be questioned at this day " (p. 565). 

In Colles vs. The Trow Company, 11 Hun, 397, 
the Court held that an agreement by defendant com- 
pany to expend its funds in stopping the competi- 
tion of a rival, was ultra vires and void — ' saying, 
page 398, " the corporation was not created for the 
purpose of destroying competition and establish- 
ing a monopoly in any other way than such as 
might be incidental to the superiority of its manu- 
factures and their excellence and cheapness." 

In the People vs. Fisher, 14 Wend., 9, 19, the 
Court say that " competition is the life of trade," 
and that " combinations and confederacies to en- 
hance the prices of any article of trade or commerce 
are injurious " to the public, and therefore illegal. 

A grant of an exclusive right of way and privi- 
lege of laying and maintaining tubing for transport- 
ing oil through a tract of two thousand acres, held 
invalid as an unreasonable restraint of trade and 
contrary to public policy. (West Virginia vs. 
Company, 46 Am. Rep., 527.) 

In Watson vs. The Companies, 52 How., 348, 
held that a combination between rival steamboat 



174 ESSAYS AND ADDRESSES 

companies, for their " joint or mutual benefit or ac- 
count," whereby competition between them was pre- 
vented, created a monopoly and so w^as '' contrary 
to public policy and injurious to the public." 

In Stanton vs. Allen, 5 Denio, 434, 441, the 
Court say, that " the association being thus secured 
against internal defection and external encroach- 
ment, and the members having thrown their con- 
cerns in a common stock, to derive an income in 
proportion to the number of shares they held, and 
not according to their merit and activity in busi- 
ness, and safe against the reduction of compensa- 
tion that w^ould otherwise follow mean accommoda- 
tions and want of skill and attention, the public 
interest must necessarily suffer grievous loss," 
and accordingly the combination w^as held to be 
illegal. 

In Hooker vs. Vanderwater, 4 Denio, 349, 353, 
held that '' the object of this combination is to de- 
stroy competition " between the parties to it ; that 
" competition is the life of trade," that '' whatever 
destroys or even reduces competition in trade is in- 
jurious if not fatal to it," and that so the combina- 
tion was a criminal conspiracy under the Statute, 
because injurious to trade and commerce. (Peo- 
ple vs. Fisher, 14 Wend., 9.) 

In Hoffman vs. Brooks, 1 1 Weekly Law Bulletin, 
258, 259, the Court, speaking of agreements to pre- 
vent competition, say: 

*' The presumption is always against the validity 
of such agreements, and certainly where they in- 



ESSAYS AND ADDRESSES 175 

elude all those engaged in any business in a large 
city, or district, are unlimited in duration, and are 
manifestly intended, by the surrender of individual 
discretion, by the arbitrary fixing of prices, or by 
any of the methods in which the hope of gain makes 
human ingenuity so fruitful, to strangle competition 
outright and breed monopolies, the law, while it 
may not punish, will not enforce them. . . . . 
It is not averred that the prices fixed are extortion- 
ate, but it is enough that they are absolutely re- 
moved beyond the operation of every natural cause 
of fluctuation." 

In Croft vs. McConoughy, 79 111., 346, 350, the 
Court, speaking of a combination to control the 
price of grain, says : 

'' So long as competition was free, the interest of 
the public was safe. The laws of trade, in con- 
nection with the rigor of competition, was all the 
guaranty the public required ; but the secret com- 
bination created by the contract destroyed all com- 
petition, and created a monopoly against which the 
public interest had no protection." 

" No one can claim protection for the exclusive 
use of a trade-mark which would practically give 
him a monopoly, &c. // he zvonld, the public zvould 
he injured, for competition zvould be destroyed/' 
(Canal Co. vs. Clark, 13 Wall., 323.) 

In People z's. Stephens, 71 N. Y., 545, the Court 
says that : 

" Arrangements and combinations among those 
prepared and expecting to become bidders at auc- 



176 ESSAYS AND ADDRESSES 

tion to prevent competition are condemned as im- 
moral and against public policy." 

In Marsh vs, Russell, 66 N. Y., 292, the associ- 
ation apparently was a mere partnership; but the 
Court said that: 

" If, however, the primary object of the firm was 
to prevent competition, it might be considered as 
against public policy, and that it would be ' con- 
demned by proof that it was part of a conspiracy to 
control prices or create a monopoly.' " 

In Hartford, &c., R. R. Co. vs. N. Y. & N. H. R. 
R. Co., 3 Robt., 415, the Court condemned as il- 
legal an agreement by a railroad company not to 
extend its line, saying that: 

" The agreement was intended to prevent any 
competition in travel; and such competition it was 
not lawful for the parties to prevent, or attempt to 
prevent." (Stewart vs. Erie Co., 17 Minn., 372; 
Charlton vs. Ry. Co., 5 Jurist, N. S., 1096.) 

In People vs. Marx, 99 N. Y., 377, the Court 
declared a formal statute unconstitutional and void, 
l)ecause it " prohibited an important branch of in- 
dustry for the sole reason that it competed with an- 
other and might reduce the price of an article of 
food for the human race." (387.) 

In Alger vs. Thacher, 19 Pick., 51, Morton, J., 
enumerates these among the grounds that invalidate 
contracts in restraint of trade : " 4. They prevent 
competition and enhance prices. 5. They expose 
the public to all evils of monopoly. And this is 
especially applicable to wealthy companies and 



ESSAYS AND ADDRESSES 177 

large corporations, who have the means, unless re- 
strained by law, to exclude rivalry, monopolize bus- 
iness and engross the market." (Bishop vs. 
Palmer, 146 Mass., 469; Oregon vs. Winsor, 20 
Wall., 64, 67.) 

'* No one can claim protection for the exclusive 
use of a trade-mark which would practically give 
him a monopoly in the sale of any goods other than 
those produced by himself. If he could the public 
would be injured rather than protected ; for compe- 
tition would be destroyed." (Goodyear Co. vs. 
Goodyear Co., 39 Alb. Law Journal 95 (U. S. S. 
Ct). 

An agreement to prevent competition at a public 
sale is void, as against public policy. (Brisbane vs. 
Adams, 3 N. Y., 129.) 

A combination to advance the price of stocks by 
means of fictitious dealings is void, as against public 
policy. (Livermore vs. Poor, 5 Hun, 285.) 

An agreement not to run a competing line of 
steamboats is illegal and invalid. (Wright vs. 
Rider, 36 Cal., 342.) 

" It is ultra vires and illegal for one railroad 
company to purchase the stock of another with a 
view to obtain a controlling interest in the latter, 
and then prevent competition between itself and 
the other company." (Central R. R. vs. Collins, 
40 Ga., 582 ; Hazelhurst vs. Savannah, &c., R. R. 
Co., 43 Ga., 13; Elkins vs. Atlantic, &c., R. R. Co., 
36 N. J. Eq., 5. 

" Property bought of an opposition steamship 



178 ESSAYS AND ADDRESSES 



/ 



line, not with a view to employing it in connec- 
tion witli the business of the road, but to withdraw 
it from business, thereby preventing competition, is 
not authorized by the charter." (Morgan vs. 
Donovan, 58 Ala., 242.) 

An agreement by one steamship company to pay 
another so much a month, as long as the former is 
suffered to run without opposition, is immoral and 
in restraint of trade. (Murray vs. Vanderbilt, 39 
Barb., 141.) 

Land may not be acquired by a railroad company 
to prevent interference by competing lines. (R. R. 
Co. vs. Davis, 43 N. Y., 137, 146; Pierce on Rail- 
roads, 513, note 2.) 

" It is not competent for a railroad company to 
grant to a single telegraph company the exclusive 
right of establishing lines of telegraph communica- 
tion along its right of way. The purpose of such 
contracts is very plainly to cripple and prevent com- 
petition, and they are therefore void, as being in 
restraint of trade and contrary to public policy." 
(Western Union vs. R. R. Co., 11 Federal Re- 
porter, 3 ; Western Union vs. Company, 23 Federal 
Reporter, 12; Bait., &c., Co. vs. Company, 24 Fed- 
eral Reporter, 319; Western Union vs. Company, 
65 Ga., 160; Western Union vs. Company, 29 Am. 
Rep., 31.) 

Com1)inations of railroads to monopolize freight 
and carriage are illegal. (Denver vs. Company, 15 
Fed. Rep., 650.) 

A municipal by-law in restraint of trade is il- 



ESSAYS AND ADDRESSES 179 

legal and void. (Hunt vs. Wickwir, 10 Wend., 
102.) 

An agreement by lessee with lessor that his em- 
ployes shall trade only with the lessor is unlawful, 
as tending to monopoly. (Crawford vs. Wick, 18 
Ohio St., 190.) 

Combinations to " corner " commodities are il- 
legal. (Sampson z/^. Shaw, loi Mass., 145; Leon- 
ard vs. Poole, 114 N. Y., 371.) 

" It may be useful and lawful to restrain him 
from trading in some places, unless he intends a 
monopoly, which is a crime." (Parker, J., in 
Mitchell vs. Reynolds, i P. Williams, 181.) 

" If a contract go to the total restraint of trade 
in the State where it is made it is necessarily void." 
West Virginia vs. Company, 46 Am. Rep., 529; 
Dunlap vs. Gregory, 10 N. Y., 244; Lawrence vs. 
Kidder, 10 Barb., 642.) 

The authority of the Mogul Steamship Co. vs. 
McGregor et al. is weakened by the considerations : 
first, that the decision was not by a Court of last 
resort, where it may be reversed; second, the de- 
cision was by a divided Court; third, the decision 
turned upon the principles of the common law, 
whereas here a statute denounces combinations in- 
jurious to trade and commerce; fourth, the decision 
is contrary to the uniform current of adjudication 
in this and other States of the Union. See criticism 
of the decision by Sir Frederick Pollock, 7 Railway 
& Corp. Law Journal, 61 ; and letter from the Brit- 
ish Consul at Hankow on the disastrous effect of 



i8o ESSAYS AND ADDRESSES 

the decision upon trade, 6 R. R. & Corp. Law Jour- 
nal 159. 

In Chappel vs. Brockway, 21 Wend., 163, the 
agreement " only secured the plaintiff in the exclu- 
sive enjoyment of his business as against a single 
individual, while all the world beside were left at 
full liberty to enter upon the enterprise." 

In Leslie vs. Lorillard, no N. Y., 519, there was 
no element of combination, and the dictum was 
only that contracts are not void, as being in general 
restraint of trade, when they operate simply " to 
prevent a party from engaging or competing in the 
same business." But on page 533 the Court says: 
" Corporations are great engines for the promotion 
of the public convenience and for the development 
of public wealth ; and, so long as they are con- 
ducted for the purposes for which organized, they 
are a public benefit, but if allozued to engage, with- 
out supervision, in subjects of enterprise foreign 
to their charters, or if permitted unrestrainedly to 
control and monopolize the avenues to that indus- 
try in zvhich they are engaged, they become a public 
menace, against zvhich public policy and statutes 
design protection." 

In the Diamond Match Company vs. Rober, 106 
N. Y., 473, the decision was that the agreement, 
being only in partial restraint of trade, was valid on 
common law principles ; but on page 483 the Court 
says, " ComlDinations between producers to limit pro- 
duction and enhance prices are, or may be, unlaw- 
ful, but they stand on a different footing." 



ESSAYS AND ADDRESSES i8i 

The Statute Book of the State is replete with Acts 
indicative that restriction of competition is contrary 
to its policy, e. g. : Laws 1884, Ch. 252, Sec. 15 ; iii 
N. Y., 65 ; Laws 1841, Ch. 183, Sec. 16; Laws 1854, 
Ch. 232; 2 R. S. (ist ed.), 691, Sec. 8; 7 Edmunds' 
Stats., p. 532, Sec. 9. 

The monopoly of a copy and patent right indi- 
cates no government policy hostile to competition, 
but is an exceptional measure for the stimulation of 
genius in authorship and invention, by guarantee- 
ing it for a period the exclusive benefit of its pro- 
duction. Not private aggrandizement, but the pub- 
lic interest is the distinct object of the regulation. 
(2 Mill Pol. Econ., 548.) . 

But, in truth, this tedious citation of doctrine and 
decisions to exhibit the illegality of monopoly com- 
binations is unnecessary, since, for the support of 
the judgment, wx are content to stand upon the law 
as propounded by the learned counsel for defendant 
in their argument below. 

On page 5-6 of his brief Judge Daly concedes 
that the effect of the adjudications is : 

'' That combinations are unlawful, the design and 
effect of w^hich necessarily is to give the party com- 
bining a monopoly more or less, for any length of 
time, of the manufacture or sale of a commodity, or 
of rates for transportation, or to regulate and con- 
trol the price of commodity, or to control the rates 
for the transportation of persons or merchandise, or 
to secure any pecuniary or other advantage in 
restraint of trade, which would be injurious to the 



i82 ESSAYS AND ADDRESSES j 

community. The unlawful purpose in all these 
cases was either to raise prices or rates by means of 
the combination, or to keep them under its control 
so that the effect would be to compel the public to . 
pay higher prices or rates than they would have to | 
pay but for the combination." | 

And on page 5 the distinguished jurist explicitly | 
admits that such a combination is an indictable of- I 
fense. 

VII 

The combination created by '' The Sugar Refin- 
eries Company " deed, being injurious to trade and 
commerce, is a criminal conspiracy, and an indict- 
able offense. 

I. — It was so at common law. (Raymond vs. 
Leavitt, 46 Mich., 447; Rex vs. DeBerenger, 3 M. 
and S., 67; Rex vs. Hillber, 2 Chitty, 163; Rex vs. 
Waddington, i East., 143, 167; Rex vs. Sterling, i 
Keble, 650; The King vs. Norris, 2 Kenyon, 300; 
Anonymous, 12 Modern, 248; People vs. Melvin, 2 
Wheeler's Cr. Cas., 262; Com. vs. Carlisle, Brightly 
(Pa.), 36; 4 Black. Com. 158-9; 2 Bish. Cr. Law, 
Sec. 231 ; I Russ. Cr. Law, 168; 3 Inst., C. 89.). 

2. — It is so in the State of New York, by express 
provision of statute. (Penal Code, Sec. 168, Sub. 
6; Leonard vs. Poole, 114 N. Y., 371 ; Pittsburg vs. 
McMillin, 53 Hun, 67, 69; People vs. Fisher, 14 
Wend., 9; Morris Run Co. vs. Barclay, 68 Pa. St., 
174; Hooker vs. Vanderwater, 4 Denio, 349; 
Clancy vs. Salt Co., 62 Barb., 395; Barbour's Cr. 
Law, 245.) 



ESSAYS AND ADDRESSES 183 

VIII 

The character of the combination, whether tend- 
ing to monopoly and injurious to the pubhc, will be 
determined by the provisions of the instrument con- 
stituting it, without reference to its efifects in actual 
operation. 

*' The clear tendency of such an agreement is to 
establish a monopoly and to destroy competition in 
trade. It is no answer to say that competition in 
the salt trade was not in fact destroyed, or that the 
price of the commodity was not unreasonably ad- 
vanced. Courts will not stop to inquire as to the 
degree of injury inflicted upon the public; it is 
enough to know that the inevitable tendency of such 
contracts is injurious to the public." (Salt Co. vs. 
Guthrie, 35 Ohio St., 672.) 

In Hilton vs. Eckersly, 6 Ellis & BL, 47, 65, Lord 
Campbell, C. J., construing the monopoly agreement 
in question, said: 

'' I do not think that any averment is necessary as 
to what has been done under it, or as to any mis- 
chief which it has actually produced. We are to 
consider what may be done under it, and what mis- 
chief may thus arise." 

In Clancy vs. Salt Company, 62 Barb, 406, the 
Court say: 

" It is impossible for any man, in reading this 
agreement, not to see that the object of the parties 
to it was to limit the production of salt — to create 
a monopoly — and to increase the price of salt " ; 



i84 ESSAYS AND ADDRESSES 

and upon the terms of the agreement the Court held 
it illegal on general principles of law. 

In Atchison vs. Mallon, 43 N.Y., 149, per Folger, 
J. : '' It is not necessary for the determination of this 
case to inquire whether the effect of the agreement 
between the parties was in fact detrimental. The 
true inquiry is, is it the natural tendency of such an 
agreement to injuriously influence the public inter- 
ests? The rule is, that agreements, which, in their 
necessary operation, tend to restrain natural rivalry 
and competition, and thus result in disadvantage to 
the public, are against the principles of sound public 
policy, and void." 

'' One result is that the Chicago Gas Trust Com- 
pany can control the other companies. The ques- 
tion is not whether it has attempted to exercise such 
control; the law looks to the general tendency of 
the power conferred." (People vs. Chicago Trust, 
supra.; Richardson vs. Crandall, 48 N. Y., 348.) 

" Its object and direct tendency is to prevent free 
and fair competition, and control prices throughout 
the national domain. It is no answer to say that 
this monopoly has in fact reduced the price of fric- 
tion matches. That policy may have been neces- 
sary to crush competition. The fact exists that it | 
rests in the discretion of this company at any time \ 
to raise the price to an exorbitant degree." (Rich- | 
ardson vs. Huhl, 7 Railway & Corp. Journal, 97.) I 

" The combination or agreement, whether or not 
in the particular instance it has the desired effect, 
is void. The vice is the combination or agreement. 



ESSAYS AND ADDRESSES 185 

the practical evil effect of the combination only 
demonstrates its character; but if its object is to 
prevent or impede free and fair competition in 
trade, and may in fact have that tendency, it is void, 
as being against public policy." (Anderson vs. 
Jett, 41 Alb. L. Journal, 104.) 

Indeed, counsel for appellant concede that the 
case presents only a question of law upon the con- 
struction of the agreement : '' Being a question of 
science and not a question upon evidence as to what 
the actual effect has been, it must be considered and 
taken to be a question of law.'' (Argument of Mr. 
Carter, p. 21.) 

Nor will the Court be deceived by the plausible 
professions of purpose on the face of the paper, but 
will construe it upon its manifest tendency. 

" The law is not to be hoodwinked by colorable 
pretenses." (Shaw, C. J., Com. vs. Hunt, 38 Am. 
Dec, 347-8; Hooker vs. Vanderwater, 4 Denio, 
352; Stanton vs. Allen, 5 Denio, 440; Matter of 
Jacobs, 98 N. Y., no; Mugler vs. Kansas, 123 
U. S., 661 ; Fisher vs. Bush, 35 Hun, 643; Harring- 
ton vs. Victoria, &c., 28 Moak Eng. R., 453.) 

IX 

The question then is, whether, by its provisions, 
the trust agreement tends to the suppression of com- 
petition and the enhancement of prices. Counsel 
for appellant concede this to be the question for ad- 
judication: "The question which you have to de- 
cide is, whether this agreement tends to stifle com- 



i86 ESSAYS AND ADDRESSES 

petition and enhance prices, and therefore to work 
an injury to trade and commerce" (Mr. Carter, p. 
22). And on p. 30 he says: ''I deny that this 
agreement does tend to stifle competition or to en- 
hance prices to the consumer." 

On the contrary, respondents affirm, that the 
*' Sugar Refineries Company " deed does constitute 
a combination tending to monopoly, the prevention 
of competition, and the enhancement of prices. 

I. — To an accurate apprehension of the operation 
and effect of the instrument and the resulting com- 
bination, it is requisite to recur to a few of the laws 
of economic science. 

1st. In determining the laws of value, political 
economy proceeds upon the postulate that compe- 
tition is free. (Laughlin, Elements of Pol. Econ- 
omy, Sec. 94.) 

2d. The natural or normal price of a commodity 
is the cost of its production, including in such cost 
the profit of the producer. 

And, toward this price the market price of the 
commodity constantly gravitates. If the market 
price sink below the normal price, production will 
decrease ; for men will not continue to produce at a 
loss, and production will diminish until the normal 
price is restored. 

If the market price be above the normal price, 
i. e., the cost of production plus the legitimate 
profit of the producer, capital, ever vigilant and ac- 
tive in quest of profitable investment, will, unless 
artificially arrested, rush into the production of the 



ESSAYS AND ADDRESSES 187 

commodity, until the increased production restores 
the normal price. 

Thus the market price of commodities perpetually 
tends to their normal price — and this price is the 
highest the producer can get, if competition be free, 
(i Mill's Principles of Political Economy, 556; 
Laughlin, Sec. 109; Cyclopaedia of Political Science, 
" Competition," by Charles Coquelin.) 

3d. The influence which disturbs the market price 
of a commodity, either raising it above, or depress- 
ing it below, the normal price, is the relative supply 
of the commodity. If the supply be greater than 
the demand for the commodity, competition be- 
tween sellers will reduce the price. 

If the supply be less than the demand, competi- 
tion between buyers will increase the price. 

" The price of every article of commerce is in- 
versely in proportion to the supply." (Chalmers 
on Political Economy; Say's Pol. Econ. b. ii., ch. i.) 

The normal price prevails when the supply is ex- 
actly equivalent to the demand. 

4th. It results, therefore, that the supply deter- 
mines the price of a commodity; and that a control 
of the supply involves a control of its price. 

5th. If, however, the supply of a commodity be 
in several hands, with diverse interests, competition 
between them will stimulate production and so di- 
minish the price. This effect, therefore, can only 
be prevented by concentrating the supply within 
the grasp of a single control — in other words, by 
a monopoly of the supply. 



i88 ESSAYS AND ADDRESSES 

6th. In its nature monopoly is incompatible with 
competition — necessarily excludes it. " Wher- 
ever competition is not, monopoly is." (2 Mill's 
Principles of Political Economy, 378.) 

The proposition is absurd that a single producer 
competes with himself in the sale of his commodity. 
And equally impossible is competition among many 
producers whose capacity of production is under 
the control of a single will — among many pro- 
ducers reduced by combination, or unification, to a 
single producer, and all of whom profit by the profit 
and lose by the loss of each. 

/th. ^Monopoly, therefore, by control of the sup- 
ply and by exclusion of competition, is absolute 
master of the price of the commodity monopolized. 
And, under the irresistible impulse of self-interest, 
monopoly will exact the highest price which the 
consumer of the commodity will stand. " The 
price of monopoly is upon every occasion the high- 
est that can be got." (Wealth of Nations, 64; i 
IU\1 546, 552.) 

" To confer a monopoly upon a producer or 
dealer, or upon a set of producers or dealers not too 
numerous to combine, is to give them the power of 
levying any amount of taxation on the public, for 
their individual benefit, which will not make the 
public forego the use of the commodity." (2 Mill, 
54/-) 

" A producer without competition may raise his 
product to what price he will, even to the extreme 



ESSAYS AND ADDRESSES 189 

limit of the consumer's ability." (Say, Pol. Ec, 
b. ii., ch. i.) 

8th. But to the monopoly price of a commodity, 
which is a necessity of comfortable existence, there 
is no assignable limit, since, for such a commodity, 
the consumer will pay an exorbitant price — econo- 
mizing by abstaining from less indispensable arti- 
cles, (i Mill, 560.) 

9th. As price depends upon the relation of the 
supply to the demand, monopoly can increase the 
price of its commodity only by reducing the supply. 
(I Mill, 552.) 

1 0th. As it is the competition between sellers only 
which reduces price, and as monopoly excludes com- 
petition, a diminution in the cost of production of 
a monopoly article does not lessen its price. ( i 
Mill, 558.) 

II. — Viewed in the light of these principles — 
axioms in the science of political economy — the 
agreement constitutes a strict and absolute monop- 
oly 

Its object to concentrate the control of the pro- 
duction of refined sugar under the dominion of a 
single will, and that will stimulated by self-interest 
to push the price of the commodity to the highest 
possible point. The scheme adopted for the attain- 
ment of its object is at once simple and infallibly 
effectual. 

1st. The refineries become corporate bodies; the 
entire capital stock of each company is transferred 



M 



I90 ESSAYS AND ADDRESSES 

to a board consisting of eleven members ; the stock 
so transferred is held in '' strict joint tenancy," so 
as upon the death or retirement of a member to de- 
volve upon the survivors; the vote of the majority 
is equivalent to " the unanimous action of the 
board." Thus, as sole owner of the entire capital 
stock of all the companies, the board absolutely 
dominates and controls the action of each and every 
company (R.R. Co. vs. Com., 7 Atlantic R., 368). 
Necessarily every question of corporate policy solv- 
able by shareholders is determined by this board, 
for they are the only shareholders. Necessarily 
every question of corporate policy and management 
solvable by the trustees of the corporation is deter- 
mined ultimately by this board; for they elect and 
remove trustees, and no man can be a trustee unless 
they choose to qualify him by a transfer of the 
requisite stock, and no man can be a trustee longer 
than they desire, since, by law to be a trustee one 
must be a stockholder, and trustees stipulate on 
request to retransfer their stock to the board. Thus 
the board controls at will the production and sup- 
ply of sugar by the confederated refineries. 

Such, in effect, is the admission of appellant: 
" The Board as sole stockholder is to elect directors 
of all the corporations, and thus can control, as 
stockholders control, but not otherwise, the action 
of all the companies." (Mr. Carter, p. 17.) 

Again on page 56 : " Suppose the board pass reso- 
lutions . . . there is no sort of doubt that the 
corporate bodies will assent ; because they are one 



ESSAYS AND ADDRESSES 191 

zidth them. Undoubtedly these corporations can 
agree upon the manner in which they will do busi- 
ness and the circumstance that competition is de- 
stroyed between them makes it reasonable and prob- 
able that those resolutions will be carried out by 
all the members. ... A power exists (in the 
Board) to fix a price eventually.'* 

2d. In return for the surrender of its stock to the 
board each company receives trust certificates in 
some proportion to the estimated value of its prop- 
erties; the profits of the companies are turned into 
the board, and then are distributed among the cer- 
tificate holders — exactly the same dividend being 
allotted to each share. Thus, each company shar- 
ing the profits and losses of every other, an abso- 
lute unity and identity of interest is secured among 
them. The profit of one being the gain of all and 
the loss of one the loss of all, competition between 
them is absolutely excluded, as absolutely as be- 
tween copartners. 

And, so appellant explicitly concedes : " Com- 
petition is destroyed between them," i. e., the com- 
panies (Mr. Carter, 56.) 

" It is the necessary effect, and may be assumed 
to be one of the purposes," of the combination (pp. 
28, 54, 18, 17). 

3d. iHaving the power to dictate the price, as 
they control the supply of refined sugar, the board 
is stimulated by self-interest to extort the utmost 
price, for its members are all holders of trust cer- 
tificates. Collectively they own the greater part, 



ig2 ESSAYS AND ADDRESSES 

and, to insure their entire devotion to the interests 
of the '' combine," they are prohibited, under severe 
penalties, to trade in sugar on their ow^n account. 

4th. The agreement makes provision for taking 
into the " combine " every other refinery in the 
country (fols. 40, 119), indeed, the ''combine" 
already controls the entire production of refined 
sugar in the State of New York, and largely the 
production in the United States (fols. 166, 225, 
227). 

Thus the agreement contemplates and makes pro- 
vision for a monopoly of the supply of sugar within 
the United States. 

And that such is its object is further demon- 
strated by the interdict upon members of the 
board " to buy or sell sugar or be interested, 
directly or indirectly, in the purchase or sale of 
sugars." 

" The control of the four companies by the ap- 
pellee — an outside and independent corporation 
— suppresses competition between them, and de- 
stroys their diversity of interest, and all motive for 
competition. There is thus built up a virtual mo- 
nopoly." (People vs. Chicago Gas Trust Co., 
supra. ) 

5th. In order to an adequate estimate of the con- 
trol of the combination over the price of sugar, and 
so to measure its capacity for mischief, we must 
bear in mind that an exorbitant impost virtually ex- 
cludes foreign competition ; and that thus there is no 
limit to the power of the combination to plunder the 



ESSAYS AND ADDRESSES 193 

public but the ability of the public to pay the trib- 
ute. 

6th. Thus it is apparent upon the provisions of 
its constitution, that the scheme contemplates and 
is framed to compass two cardinal objects: First, 
the prevention of competition between the refineries 
in the combination; and this it accomplishes by 
consolidating their interests and creating between 
them a community of profits and losses, and by 
subjecting them to the control of one and the same 
management, whereby an identity of price in the 
purchase of the raw material and in the sale of the 
finished product, may be fixed for each and every 
refinery. Second, a monopoly of the production 
and supply of sugar throughout the country by the 
absorption of all other refineries; for which provi- 
sion is made by the express terms of the deed and 
by the reservation of an adequate fund in the treas- 
ury of the combination. To attain these objects is 
the obvious and only raison d'etre of the combina- 
tion ; and in so far as it fails to realize either result, 
it miscarries in its mission. That either object suf- 
fices to condemn the combination as illegal — as, in- 
deed, a criminal conspiracy against the public inter- 
ests — is an incontrovertible proposition. Author- 
ities, supra. 



Conceding that the board " will be governed by 
the ordinary motives which influence human action, 
and, so far as it is for their interest and so far as 



194 ESSAYS AND ADDRESSES 

they have the power, to raise prices, to that extent 
iindoubtedly it may be assumed that prices will be 
raised" (Mr. Carter, p. 17), and admitting that it 
is the aim and effect of the combination to prevent 
competition between its members, appellant argues 
that still the combination is ineffectual to maintain 
prices above their normal rate, because it is im- 
possible for the combination to monopolize the pro- 
duction of refined sugar; and by an inexorable law 
of economic science, excessive profits will stimulate 
competition and so reduce prices to their normal 
level. 

I. — Pausing upon the concession " that by the 
combination, competition among its members is de- 
stroyed," this effect of itself and alone condemns 
the combination as illegal; for it is precisely such 
combinations, and because of precisely such an ef- 
fect, that are discredited and denounced in the ad- 
judged cases (authorities, supra). The language 
of Courts and writers is uniform, that if the agree- 
ment or combination tend to monopoly, if it reduce 
or lessen competition, it is contrary to public policy 
and unlawful, because operating pro tanto an arti- 
ficial enhancement of price. In no case or book is 
there an intimation even, that in order to incur the 
censure of the law, the combination must constitute 
a complete monopoly, and the agreement effect a to- 
tal extinction of competition. 

1st. The etymological is neither the scientific nor ^ 
legal sense of monopoly, but both political econo- \ 
mists and judges recognize and reprobate partial i 



ESSAYS AND ADDRESSES 195 

and temporary monopolies, operating respectively 
partial and temporary detriment to the public in- 
terest. Monopoly comprehends " cases in which a 
person or a union of persons cannot control more 
than a portion of the whole supply of the commod- 
ity, since such a partial control may render possible 
and profitable an artificial rise in the price of the 
commodity" (Sidgwick, Prin. Pol. Econ., 338, 
188-9, 408-9, 335, 336, 195). In a note (p. 189) 
this author adduces as an instance of a partial and 
temporary monopoly, and its ruinous consequences, 
the Gold Ring (Black Friday) of 1869. So, Mill, 
Vol. I, p. 502: " A trade may also from the nature 
of the case" (e. g., Sugar Refining) "be confined 
to so few hands that profits may admit of being put 
up by a combination among the dealers." Again 
on page 501 :" If a business can be advantageously 
carried on only by a large capital " {e. g., Sugar 
Refining), " this, in most countries so narrowly lim- 
its the class of persons who can enter the employ- 
ment, that they are enabled to keep up their rate of 
profit above the general level." Again : *' There 
are but few commodities which are naturally and 
necessarily limited in supply. But any commodity 
whatever may be artificially so. . . . Any com- 
modity may be the subject of a monopoly " ( i Mill's 
Principles of Political Economy, 552, D. Appleton 
& Co., 1864). 

And Laughlin (Elements of Pol. Econ., Sec. 
203) says: '' Other instances " (of partial monop- 
oly) " are to be found in the temporary effects of 



196 ESSAYS AND ADDRESSES 

combinations and corners," by which " the supply 
is Hmited in order to cause the whole to be taken 
off at a price independent of the normal value." 

If the bare possibility of a rival springing up to 
compete with the combination suffices to efface its 
character as a monopoly, then there can be no mo- 
nopoly except in the rare and unimportant case of a 
complete possession or control of the commodity; 
and as to all the great trades and industries there 
can be no monopoly, and they are beyond the pro- 
tection of the law which prohibits combinations to 
prevent competition and enhance price — a mani- 
fest reductio ad absurdum. 

In none of the cases condemned by the courts as 
monopolies, we repeat, was there a complete and 
entire control of the commodity by the combina- 
tion. 

2d. Nor is a partial monopoly, i. e., a combina- 
tion controlling only a portion of the supply, inef- 
fectual for the maintenance of monopoly prices 
(citations supra from Sidgwick, Mill and Laughlin). 
Appellant admits that ''this combination cannot 
raise the price without raising it for the benefit of 
others, and the outsiders may or may not choose 
to raise their prices accordingly." (Mr. Carter, 
P- 32.) 

But if "outsiders" elect to undersell the combi- 
nation, still their competition will not affect the mo- 
n()p(jly price of the combination, unless they he cap- 
able of a production adequate to the supply of the 
entire market. 



ESSAYS AND ADDRESSES 197 

So long as the combination by its control of pro- 
duction can prevent the supply being equal to the 
demand, it has the power to indefinitely increase 
price. '' If the article is a necessary of life, which, 
rather than resign, people are willing to pay for at 
any price, a deficiency of one-third (withheld by the 
combination) may raise the price to double, triple, 
or quadruple." (2 Mill, 550, and note.) 

" A partial control of the supply may render pos- 
sible an artificial rise in the price of the commodity, 
even though the remainder is supplied by several 
sellers freely competing, if only the proportion con- 
trolled is so large that its zvithdrazval would cause 
a serious scarcity, and thus considerably raise the 
competitively determined value of the uncontrolled 
remainder." (Sidgwick, 338.) 

The validity of this ascertained law of economic 
science is susceptible of easy illustration and proof. 

(a) Suppose that this combination controls tzvo- 
thirds of the product of refined sugar, and the out- 
side competitors one-third, and that while the com- 
bination demands seven cents a pound the competi- 
tors ask only five cents. Now, it is an axiom of 
political economy that there cannot be two prices 
for the same article in the same market, because, 
of course, everybody would buy the commodity 
at the lower price. It follows, therefore, that 
everybody would buy at five cents of the competi- 
tors. But competition between buyers enhances 
the price, and their competition would ultimately 
raise the price of the outside competitors to the 



198 ESSAYS AND ADDRESSES 

price of the combination, unless those competitors 
could supply the entire demand. 

(b) Suppose, however, the one-third product of 
the outside competitors be taken at the -five cent 
price. The demand, being yet unsatisfied, could 
be supplied only by the combination, which, having 
now a complete monopoly of the commodity, could 
extort a monopoly price — to the extent even of 
indemnifying itself for any loss it may have sus- 
tained by the previous competition. 

Wherefore, if outside competitors cannot supply 
all the demand, they cannot prevent a monopoly 
price. 

And this a priori deduction is confirmed by the 
observed fact, that competitors of a combination 
uniformly avail themselves of the monopoly price 
of the combination. 

3d. At all events this combination is, in legal 
effect, a strict monopoly, for the evidence shows 
that it controls absolutely and completely the sup- 
ply of sugar in the State of New York, and such 
control in a single State is held by the courts of 
that State to be a monopoly. (Lawrence vs. Kid- 
der, 10 Barb., 642; Dunlop vs. Gregory, 10 N. Y., 
244; West Virginia, &c., vs. Company, 46 Am. 
Rep., 529.) 

II. — Advancing now to appellant's main argu- 
ment, namely, that although this combination ex- 
tmguishes all competition among its members, yet 
it is impotent to control or arrest the larger com- 
petition of capital invited by the excessive prices 



ESSAYS AND ADDRESSES 199 

of the combination to invest in the production of 
sugar, and that so increased production will reduce 
price to its normal level, we answer : 

I St. That the argument postulates free competi- 
tion of capital with capital and of labor with labor. 
Whereas, the utmost that can be affirmed in support 
of the argument is, that it is the tendency of labor 
to seek the highest wages, and of capital the largest 
profits ; and so that it is the tendency of economic 
forces to maintain an equilibrium of price. The 
fallacy of appellant's argument lurks in the ambi- 
guity of the word tendency; which means either the 
operation of causes that will produce a result, or 
the operation of causes that may produce a result, 
if not arrested or impeded by counteracting forces. 
(Whateley's Lectures on Pol. Econ., 231.) 

In the latter sense appellant's proposition is true ; 
in the former it is false. In point of fact many 
causes operate to hinder the free competition of 
labor and of capital — a fact attested conclusively 
by the prevalence of different rates of wages and of 
different rates of interest (Laughlin, Sees. 124- 
125). Hence, the utmost we may predicate of the 
competition of capital in redressing the balance of 
prices is, that such is its tendency, and possibly its 
ultimate result. " After due allowance is made for 
these various causes of inequality, difference in the 
risk and agreeableness of different employments, 
and natural or artificial monopolies, the rate of 
profit on capital in all employments tends to an 
equality" (i Mill, 502). Again, ''But in all 



200 ESSAYS AND ADDRESSES 

things which admit of indefinite multiplication, de- 
mand and supply only determine the perturbations 
of value during a period which cannot exceed the 
length of time necessary for altering the supply " 
(id., 561). Mr. Carter himself says: ''AH the 
combinations in the world for the manufacture of 
refined sugar could never permanently keep up the 
price," etc. (p. 39), and that the reduction of price 
'' may not occur in one month or tw^o months or 
three months, and a temporary rise in price may be 
brought about in this manner," i. e., by the combi- 
nation (p. 33). So that assuming a free migration 
of capital in quest of profitable investment, there is 
still a complete absence of competition with the 
combination, for the long period during which out- 
side refineries are building and equipping and get- 
ting their product upon the market; and of what 
havoc even a temporary monopoly is capable, we 
again adduce the Gold Ring of 1869 as a memora- 
ble and admonitory instance. 

And then, if after a prolonged exaction of arbi- 
trary and exorbitant prices, the combination ulti- 
mately collapses, under the strain of competition, 
tlie widespread disturbance of the market and finan- 
cial ruin, exhibit another set of evils engendered by 
the system — as witness the recent explosion of the 
copper syndicate. 

2d. Even after outside refineries shall be estab- 
lished, equipped and in operation, it by no means fol- 
lows that they will compete with the combination 
in the reduction of prices (supra), and if they do, 



ESSAYS AND ADDRESSES 201 

experience, notably of the Standard Oil Company, 
demonstrates that nascent rivals are invariably 
crushed by established and powerful combinations, 
which, for that purpose, reduce prices until their 
competitor is driven from the field, and then in- 
demnify themselves by aggravated plunder of the 
public. 

In enumerating the classes of monopolies, the 
Cyclopaedia of Political Science, etc., vol. II., p. 891, 
distinguishes: ist. '' The engrossing of a business 
by a combination of individuals, who by means of 
the vastness of the capital invested, drive out com- 
petitors, not by a superior service, or a lower nor- 
mal price, which is the operation of the natural law 
of competition, but by losses deliberately incurred 
which they can bear and the competitor cannot, to 
be recouped by excessive charges when the com- 
petitor is made harmless." 

XI 

The Sugar Refineries combination is not justified 
by the economic law of " Large Production " 
(Laughlin, Sec. 50), i. c, by the efTect of aggre- 
gated capital and concentrated management, in re- 
ducing prices. 

1st. The combination does not bring a single ad- 
ditional dollar to the production of sugar. The 
principle of division of labor is not more available 
and operative than before the combination. 
Neither is there any aggregation of capital or con- 
centration of management; for, by express provi- 



202 ESSAYS AND ADDRESSES 

sion of the trust deed, '' the several companies, 
parties to this agreement, shall maintain their sep- 
arate organization and each shall carry on and con- 
duct its own business." So each company main- 
tains its own complement of salaried officers and 
servants, and, subject to the control of the board, 
directs its own affairs, and hence there is no econo- 
mizing of expenditure. The cost of running each 
company is precisely what it was before the com- 
bination, and the business of each is still under a 
separate and several management. And the capital 
of each company remains in its own exchequer ; 
only the certificates, representatives of that capital, 
are deposited with the board, in order to collect 
there the voting power of the companies. 

2d. Such establishments as Macy's, Wana- 
maker's, etc., have no control of the production of 
commodities, and so cannot enhance prices ; but are 
concerned only in the distribution of commodities, 
and so by the greater capital they employ, by so 
much increase the volume of supply, and by as 
much as they increase the volume of supply, by so 
much diminish prices. Their only chance of suc- 
cess is in underselling small dealers, and this they 
are enabled to do by the great aggregate income 
they realize from small profit on immense capital. 
Thus such establishments are the very opposite of 
monopoly; for while they live only by extending 
the area of demand and consumption to which a 
reduction of price is indispensable, monopoly thrives 
only upon a diminution of supply, by which ex- 



ESSAYS AND ADDRESSES 203 

pedient only can it command exaggerated prices. 
Demand and consumption are extended only by a 
decrease of price; but the end and aim of monopoly 
is increase of price, and this it surely accomplishes 
b}^ curtailment of supply, instead of useless expendi- 
ture in augmented production, and the hazardous 
experiment of cheap prices. 

If Macy and Wanamaker had a monopoly of com- 
modities, they would exact their own prices; but 
now they can sell only by underbidding competitors. 

XII 

The example of the Standard Oil Company, ad- 
duced as an instance of the reduction of price by 
combination, involves the fallacy of the petitio 
principii, in assuming the very proposition to be 
proved, namely, that reduction of price was a con- 
sequence of the combination. True, the price of 
refined oil is less than before the existence of the 
combination; but non liquet that the combination 
was the cause of the reduction, since other causes 
adequate to the effect were in full operation, e. g., 
increase of the raw material, diminution of the cost 
of production by improved processes and machinery, 
etc. Non constat, but that under free competition 
the price would have been still less; as probably it 
Avould have been, since all experience attests the 
efficacy of competition in the reduction of price. 
Indeed, we have the assurance of the highest au- 
thority that the fall in the price of refined oil was 
not because, but in spite of the Standard combina- 
tion. 



204 ESSAYS AND ADDRESSES 

" Newspaper organs of monopoly tell us to ad- 
mire the magnanimity of the Standard Oil people, 
who have reduced prices. This is a false state- 
ment. Prices have fallen in spite of the most 
strenuous efforts to keep them up. . . . They 
have always held back vast quantities of oil to main- 
tain prices, and rumors reach us of a determined 
effort to diminish production." (Professor Ely, 
Problems of To-day, p. 144.) 



XIII 



The sugar combination finds no justification or 
support in the right accorded by law (Penal Code, 
Sec. 170) to associations of labor for the enhance- 
ment of wages. 

The mischief of over-supply and inadequate values 
in commodities, the producer can and will correct 
by a reduced supply, thus restoring the equilibrium 
of prices. But sentient labor cannot withdraw 
from the market, it must eat or die ; and, indeed, in 
proportion to the inadequacy of wages, is the in- 
crease in the supply of labor, for the deficiency of 
wages can be compensated only by longer work and 
conscri])ting the young and the old for the support 
of the family — the less the pay, the more the work 
necessary for subsistence. Then, too, since the 
lalxjr class constitute the mass of society, and since 
the well-being of society depends upon the physical, 
intellectual and moral condition of the mass of its 
constituents, the law secures to labor the right of 



ESSAYS AND ADDRESSES 205 

recourse to the only expedient, combination, by 
which its condition may be bettered. 

XIV 

Nor is the case similar to the pooling arrange- 
ments between railroad carriers (which, however, 
are illegal, authorities supra), for there the evil of 
monopoly is checked by the power of the State to 
regulate prices. (Munn vs. Illinois, 94 U. S., 113; 
R.R. Commission Cases, 116 U. S., 307; Dow vs. 
Biedelman, 125 U. S., 680; People z'S. R.R., 70 
N. Y., 569.) 

XV 

Defendant's counsel assume that here was a sale 
of defendant's stock to " The Sugar Refineries 
Company." The relevancy of the point to the argu- 
ment is not apparent; but indisputably the transac- 
tion has no feature of a sale. 

1st. A sale implies a price for the thing bought; 
but here was no price paid or promised; and the 
trust certificates exchanged for the stock are only 
evidence of the holder's right to the stock deposited 
with the board, and to dividends on it. 

2d. The deed provides in terms that the stock 
shall be held by the board " as trustees.'' 

3d. If the stock were sold to the board, it would 
be the property of the board, and the profits, as an 
incident of that property, would belong to the 
board; but by the provisions of the deed these prof- 
its are to be distributed in the form of dividends to 



2o6 ESSAYS AND ADDRESSES 

the holders of the certificates exchanged for the 
stock. 

4th. If the corporate stock be sold to the board 
for the price of its certificates, then upon the dis- 
solution of a corporation its assets would be the 
property of the board — a result which the stock- 
holders in the corporation would be the last to ac- 
cept. 

5th. No rational mind can draw any other con- 
clusion than that the corporate stock was transferred 
to the board for the sole purpose of imparting to 
the board the voting power of the stockholders — 
in other words the control of the corporation. 

XVI 

The fact that the arrangement imposes a copart- 
ncrsliip liability on the associated corporations, is 
ineffectual to efface the illegality of the combina- 
tion. 

The assimilation of such a scheme to a copartner- 
ship was attempted in Stanton vs. Allen, 5 Denio, 
442 ; but the Court dismissed the argument sum- 
marily with the remark, that " no one can be de- 
cei\cd by any supposed analogy between the prin- 
ci])lc of uniformity of price among members of an 
ordinary business firm, and the same thing in a con- 
federacy formed for no other purpose or use than 
to bring it about." 

XVII 

Another argument by Mr. Carter is that the sev- 
eral interests implicated in the combination might 



ESSAYS AND ADDRESSES 207 

legally be consolidated in a single corporation; and 
that hence the present confederacy of corporations 
is invulnerable to attack. 

But — 

1st. It is no defense of the system assailed that 
another scheme constructed on a different principle 
might be legally unimpeachable. The argument 
proceeds on a false analogy; and it is no justifica- 
tion of one thing to show that another and different 
thing might be legal and legitimate. 

2d. The argument involves not only a non- 
sequitnr, but the assumption of a false premise, 
namely, that for the purpose and to the effect of se- 
curing a monopoly of the sugar refinery business, 
all the sugar refining interests of the country might 
legally be concentrated in a single company. 

Any combination to do an act injurious to trade 
or commerce is a criminal conspiracy (Penal Code, 
Sec. 168, Sub. 6), and to prevent or restrict com- 
petition is injurious to trade and commerce (Leon- 
ard vs. Poole, 114 N. Y., 371 ; Hooker vs. Vander- 
water, 4 Denio, 353; People vs. Fisher, 14 Wend., 
19, and authorities supra.) An otherwise lawful 
combination becomes a crime if its intent be to form 
a monopoly (Parker, C. J., in Mitchell vs. Rey- 
nolds, I P. Williams, 181). Hence, it is an un- 
warrantable hypothesis to assume that the right of 
incorporation for legitimate business, involves the 
right to incorporate for an unlawful purpose. 
(Clancy vs. Salt Company, 62 Barb., 395; Endow- 
ment Fund vs. Sutchwell, 71 N. C, iii ; 8 Am. St. 



2o8 ESSAYS AND ADDRESSES 

R., 192, note by Freeman; Richardson vs. Buhl, 7 
R.R. & Corporation Law Journal, 89; People vs. 
Chicago Gas Trust, 41 Alb. Law J., 68.) 

XVIII 

It is no answer to the criticism of the sugar 
" combine " to say, that a man may do what he 
pleases with his own, that the stock in the several 
companies is the property of the shareholders, and 
that they may dispose of it at their pleasure. 

For it is not a true proposition of law that a man 
may do as he chooses with his own, the fundamen- 
tal principle is rather, sic liter e tiio tit alienum non 
Iccdas, and every man's property is subject to the 
restriction that he shall not use it to the detriment 
of society. Salus populi suprcma lex. It is upon 
this principle that the law condemns and confiscates 
property as a nuisance; it is by this principle that 
the law restrains in so many particulars the right 
of a man to contract (Stanton vs. Allen, 5 Denio, 
441), especially forbidding him so to contract as to 
create monopoly. Authorities, supra. 

'' Every right, from absolute ownership in prop- 
erty (l(jwn to a mere easement, is purchased and 
holdcn subject to the restriction that it shall be so 
exercised as not to injure others." (Coates vs. 
Mayor, 7 Cowen, 585.) 

XIX 

It is perfectly obvious that the scheme under dis- 
cussion does not present a case of mere partial re- 
straint of trade, for the benefit of the vendor of a 



ESSAYS AXD ADDRESSES 209 

commodity or business (Diamond ^vlatch Co. vs. 
Roeber, 106 X. Y., 473; Leslie z's. Lorillard, no 
X. Y.. ^^^ ; Watertown zs. Pool, 51 Hun, 157), but 
is, in purpose and effect, a combination of producers 
to monopolize and control the market, and hence 
cannot be vindicated upon the principle of those 
decisions. 

XX 

The scheme of combination constituted by the 
Sugar Refineries Company deed creates a monopoly 
in the strictest and most absolute sense, /*. c, a single 
seller. It concentrates the power of production 
and supply in a single body, actuated by a single 
and common interest; it excludes the possibility of 
competition, and it tends inevitably to the enhance- 
ment of price. Thus the combination is illegal 
and criminal ; and since *' a corporation has no 
authority to do acts which by the public law are in- 
dictable " (State Z'S. Krebs, 64 X'". C, 604); since 
acts ultra vires, i. c abuse of corporate powers 
(Code Civ. Pro.. Sec. 1798, Sub. 2), and *' a vio- 
lation of any provision of law (id.) are express 
statutory grounds of forfeiture, it results that the 
verdict was well directed against defendant. 

And that the intervention of the Courts is chal- 
lenged bv the urgency of the public interest, is evi- 
dent from the mischievous consequences of trust 
combinations. 

" If it is to be the future order of things that each 
of the industries is to be in charge of one trust, and 



2IO ESSAYS AND ADDRESSES 

competition thereby excluded, what follows? 
Among other things such as these: 

(i) The creation of as many distinct dominating 
classes as we have industries, to whom all other 
interests will be selfishly subject and subordinated. 
(2) A domination of capital over labor which would 
leave to the workman, not the highest wages he 
could get from among a host of competitors for his 
labor, but just what the one monopolist employer 
may arbitrarily choose to give him. (3) The dis- 
couragement of the production of raw materials 
through the constant forcing down of their price 
that comes by confining the demand to one pur- 
chaser. (4) The discouragement of invention by 
restricting production to one mammoth corporation ; 
who, with no fear of a competitor before their eyes, 
would be less necessitated to keep up with the march 
of discovery and little disposed to prematurely 
destroy old plant for better. (5) The creation of 
fierce antagonisms between trusts whose interests 
might be conflicting, causing interruptions to busi- 
ness far more serious than those we suffer from the 
worst forms of strike. (6) The subjecting of the 
whole distributing trade to just such conditions and 
compensations as the monopolist producer may 
choose to dictate, with no possibility of recourse or 
redress. (7) The old plant of our industries (which 
should have been allowed to give place to new in a 
natural way), having been absorbed into the monop- 
olies, will have to do duty with the improved, and 
will thus be conserved to act as a drag upon the 



ESSAYS AND ADDRESSES 211 

efficiency and economy of production. (8) The in- 
troduction of very serious changes in the relations 
of banking to commerce ; for, under the trust system, 
the banks would have to carry a whole industry in 
one solid block, and not, as at present, divided among 
a wide diversity of individual firms. (9) The own- 
ing and control of the banks, in a large measure, by 
the monopolies, in order to protect their own mam- 
moth interests and also to hold in the more complete 
subjection such other interests as might not relish 
their industrial domination. (19) The creation of 
an industrial aristocracy of immense power, which 
would foster class hostilities, embitter politics and 
endanger the Republic." — Nciv York Daily Com- 
mercial Bulletin, 1st April, 1889. 

XXI 

Defendant corporation is party to the Sugar Re- 
fineries Company deed. 

I. — In September, 1887, George H. Moller, then 
secretary of the defendant company, signed the deed 
thus : '' North River Sugar Refining Company, Geo. 
H. Moller, Secretary" (folios 98-99); and he so 
signed under and pursuant to a resolution of a meet- 
ing comprising all the stockholders and trustees of 
the company (folio 99), declaring it to be " for the 
interest of the North River Sugar Refining Com- 
pany to participate in the consolidation " of the 
Sugar Refineries (folio 103), and authorizing "the 
President and Secretary ... to sign all con- 
tracts, agreements and papers which the above com- 



212 



ESSAYS AND ADDRESSES 



inittee may make in relation to the said consolida- 
tion " (folio 104) — i. e., the combination in ques- 
tion. And he so signed in the belief that he had 
authority to sign from the stockholders and trustees 
(folio 98). 

Plainly, if Moller had authority to execute the 
instrument in behalf of the company, the subsequent 
resolution of November 4th, 1887, purporting to 
revoke that authority, was ineffectual to cancel an 
execution already consummated. 

The preamble to the resolution of November 4th, 
declared that '' it is deemed inexpedient at the 
present time to enter into any such consolidation " 
(folio 108). Thus, the resolution to go into the 
combination was not rescinded, but was only post- 
poned in the time and modified in the mode of execu- 
tion. So, at a meeting of stockholders of the com- 
pany, held 25th November, 1887, it was recited that 
whereas iMoller had signed the deed under the be- 
lief that he was authorized so to do, providing for 
the delivery of the stock of the company to trustees 
therein named (folio 119) ; and whereas, " John E. 
Scarles, Jr., had offered to purchase the capital 
stock of said North River Sugar Refining Company 
for the sum of $325,000," it was "Resolved, that 
Peter Moller, Jr., George H. Moller and Gerd Mar- 
tens be and they are hereby appointed a committee 
to deliver said stock to John E. Searles, Jr. (mem- 
ber, secretary and treasurer of the board), or at 
his request to Jolin E. Parsons, John R. Dos Passos 
and Franklin Bartlett, trustees" (folio 120), ap- 



ESSAYS AND ADDRESSES 213 

pointed by the board to receive the stock from the 
individual stockholders ; so as to make " certain that 
the stockholders of all corporations had assented," 
before the issue of certificates for the stock (folio 
196) ; and then to transfer the stock to the board 
(folio 161). 

Accordingly, all the stock of the North River 
Sugar Refining Company was transferred, by blank 
assignments, to John E. Searles, Jr. (folio 115), 
who purchased for the Sugar Refineries Company 
(folio 161) ; he transferred it to the named trustees, 
and they transferred it to the Sugar Refineries Com- 
pany (folios 161, 163). 

Obviously, the resolution of the 25th of Novem- 
ber, coupled with the acts done pursuant to it, was 
a ratification of George H. Holler's execution of the 
deed — namely, he had agreed for the company 
that it should become a party to the consolidation; 
and the resolution and consequent action of the 
company made it a party to the consolidation. 
Every right and every obligation conferred or im- 
posed upon the company or its stockholders by Hol- 
ler's execution became, in fact, the right and obliga- 
tion of the company or its stockholders — they are 
both in precisely the same situation they would have 
been in under Holler's execution — and the deed 
still bears the signature " North River Sugar Re- 
fining Company, George H. Holler, Secretary " ; 
the company is still a party to the deed. 

2. — ^Upon the supposition that Holler's signature 
was a nullity, still one may be a party to an instru- 



214 ESSAYS AND ADDRESSES 

mcnt without a formal, technical execution of it — 
without signing it. It is common learning that a 
grantee in a conveyance becomes a party to it and is 
bound by its covenants, by taking the benefit of it 
and without executing it. Here, the North River 
Sugar Refining Company or its shareholders — 
whoever they be — have done what the deed re- 
quired of them, i. e., transferred their stock to the 
board (fohos 139, 139, 163, 139, 155), have got 
what the deed guaranteed to them, namely, the cer- 
tificates of the Sugar Refining Company (folios 138, 
155' 1^3)- This board, the Sugar Refineries Com- 
pany, was constituted and created under and pur- 
suant to the deed (folios 138). The stock was 
transferred to the board in conformity with the 
terms of the deed (folios 142, 154). Certificates 
for the North River Company's stock were to be 
issued for " the amount specified in the deed " 
(folio 154), and w^ere received from the board 
(folio 159). The board holds the North River 
Company stock " subject to the purposes set forth 
in the deed " (folio 158). The fifteen per cent re- 
served out of the $700,000 certificates allotted to 
the North River Company, w^as so reserved under 
the deed (folios 228, 237, 239) — "the original 
agreement with the North River Company " (folios 
286, 242). 

Finally, the North River Company, or its stock- 
holders, have been awarded the dividend stipulated 
by the deed (fol. 201). 

Beyond all controversy, the North River Com- 



ESSAYS AND ADDRESSES 215 

pany, or its stockholders, have acted upon the pro- 
visions of the deed, have received and enjoy the 
benefits of it, and so are parties to it; if not upon 
the original execution of Moller, then as effectually 
by subsequent adoption and ratification. (The 
Sheldon Company vs. the Eickmeyer Co., 90 N. 
Y., 607; President, &c., vs. R. R. Co., 7 Lans., 240.) 

XXII 

But the controlling question of fact is, not 
whether the defendant was a party to the deed, but 
whether it is in the comhination? The allegation 
of the complaint is that, " said agreement con- 
stitutes a combination to do an act injurious to trade 
and commerce, to zvhich combination defendant is 
a party " (folio 43). 

I — By the essential principle and policy of the 
scheme, the corporations are parties to the com- 
bination, thus : 

1st. The board is created by the corporations. 

2d. The deed explicitly provides that none but 
corporations can be parties to the combination. 

3d. The deed recites, '' The several corporations, 
parties to this agreement," etc. 

4th. " The several corporations shall be entitled 
to the shares " of trust stock. 

5th. Provision is made for the acquisition of 
other refineries " to become parties to this deed." 

6th. The profits of each corporation is to be paid 
over by it to the board, etc. 



2i6 ESSAYS AND ADDRESSES 

7th. The corporations stipulate for the transfer 
of their stock. 

8th. Each corporation agrees to maintain its 
separate organization, etc. 

9th. Funds for the board are to be raised " by 
mortgage to be made by the corporations on their 
property." 

loth. The profits of the corporations, before 
declaration of a dividend, are to be turned into the 
board. 

nth. Nowhere does the deed recognize stock- 
holders as parties to the instrument or constituents 
of the company; but on the contrary, the essential 
principle of the scheme is, that it is the creation of 
the corporations. 

Obviously and undisputably, the corporations, as 
such, are the constituents of the combination. 

II — Defendant might become a party to the com- 
bination without being technically and formally a 
party to the deed. 

The agreement created and constituted the com- 
bination. The combination is the effect of the 
agreement. An agreement to form a combination is 
one thing; the consummation of the combination is 
another substantive thing. 

Defendant might go into the combination after 
its formation, without having previously executed 
the agreement. It appears on the face of the agree- 
ment that some individuals signed it ; but individuals 
could not join the combination; they were organ- 
ized as corporations, and those corporations after- 



ESSAYS AND ADDRESSES 217 

ward went into the combination, although they had 
never signed the agreement. 

Ill — Whether defendant be in the combination is 
determined exclusively and decisively by the trans- 
fer of its stock to the board, named the Sugar Re- 
fineries Company. The answer admits that " the 
owners of corporate stock of this defendant, and of 
other sugar refinery companies, have assigned and 
transferred their stock to the said persons called 
the Sugar Refineries Company" (folio 57), and the 
fact appears also in the evidence (folios 115, 121, 
138). Armed with the voting power of defendant 
corporation, the board has absolute control of the 
corporation, and is bound by the deed under which 
it holds its stock, to exert that control in the interest 
and for the aggrandizement of the combination. 

IV — This defendant, in a peculiar and emphatic 
sense, is a party to the combination; for while the 
board is only nominal owner of the stock of other 
companies, the beneficial ownership being in the 
holders of the certificates for which it was ex- 
changed ; of defendant's stock, while the board holds 
the legal title, the beneficial interest is in the associa- 
tion ; for defendant's stock was bought by Searles in 
behalf of the combination, was paid for by the 
money of the combination (folios 160, 163), and, 
accordingly, the dividend declared upon defend- 
ant's stock is retained in the treasury of the com- 
bination (folio 204). 

V — The declaration of a dividend by the board 
upon defendant's stock (folio 201) affords con- 



2i8 ESSAYS AND ADDRESSES 

elusive evidence of its connection with the combina- 
tion. 

\'I — To the argument that since appellant had 
no legal power to enter the combination, in con- 
templation of law it has not entered the combina- 
tion, the Court of Appeals furnishes a conclusive 
answer in the Matter of McGraw, iii N. Y., io6. 

XXIII 

Defendant corporation was carried into the com- 
bination by the concurrent action of all the stock- 
holders and trustees — action, taken not as indi- 
ridiials, but as stockholders and trustees, and taken 
for the express purpose of placing the corporation 
within the grasp and control of the combination. 

I — The original resolution of April 22d, 1887, 
authorizing the accession of the company, and as 
a company (folio 103), was adopted at a regular 
meeting of the stockholders, all the trustees being 
present and voting for the resolution (folios 104 and 
105). The resolution of the 25th November, 1887, 
authorizing the sale and transfer of defendant's 
stock to Searles was adopted at a regular meeting 
of stockh(jl(lcrs, all being present except two, and 
they ** consenting and delivering up their stock " 
(folios 116-118). At this meeting all the trustees 
were jjresent and voted for the resolution (folios 
10 1. 1 16, I t8, 121). 

In every instance the board had assurance that 
the transfer of stock was made by authority of " all 
the stockholders" (folio 195). 



ESSAYS AND ADDRESSES 219 

" The agreement was in fact made and the mort- 
gage authorized by all the stockholders. They were, 
it is true, also trustees, but their assent in that 
capacity must bind them in both characters." 
(Paulding vs. Company, 94 N. Y., 341.) 

2. — ^Searles, being sole owner of defendant's 
stock, being in fact the company ("I was the North 
River Sugar Refining Company"), (folio 150), 
transferred it to the Sugar Refineries Board (folio 
139). Thus by the action of all its stockholders 
and trustees, defendant company was taken into the 
combination, and there it is to-day. 

3. — And, not only was defendant carried into 
the combination by the act of its stockholders as 
such; but its present stockholders, as such, are the 
men who compose and control the combination. 

XXIV 

On the hypothesis that by no act of its trustees, 
as such, was defendant introduced into the com- 
bination, we answer that in quo zvarranto to dis- 
solve a corporation, it is the misconduct of the 
corporators that operates a forfeiture of the cor- 
porate franchise. 

I. — The corporation itself — the metaphysical 
entity — is obviously incapable of action. Its 
" concerns " are " managed " by the board of trus- 
tees (Act 1848, Section 3) ; but these trustees are 
'' elected by the stockholders " {id.), who therefore 
constitute the ultimate and supreme power in the 
corporation. The will of the corporators is the will 



220 ESSAYS AND ADDRESSES 

of the corporation; the property of the corporation 
is virtually the property of the corporators; the 
gains of the corporation are the gains of the cor- 
porators, and its losses their losses. The corpo- 
rators constitute the corporation; so that if they all 
die it dies (Field on Corp., 449; Boone on Corp., 
Sect. 199). In fact the corporators are the coi^ 
poration, and the notion of a corporate entity, dis- 
tinct and apart from the natural persons composing 
the corporation — of a body independent of its 
members — of a substance separate from its con- 
stituents — this notion, invented by the subtle in- 
tellect of Coke, '' for the purpose of perpetual suc- 
cession " (Marshall, C. J., in Dartmouth College 
Case, 4 Wheaton, 636), is an empty fiction, and, 
as such, of no weight in the present discussion. 
On this point the authorities are clear and con- 
clusive. 

" llie right of acting as a corporation is a fran- 
chise in the individuals that compose it." (2 Kyd 
on Corp., 475.) 

" A corporation in the concrete is taken for the 
particular members of such corporation." (Ayl- 
iffc, Civ. Law, 196.) 

" y\\Q: corporation consists of the whole number of 
members." (i Morawetz on Corp., Sec. 474.) 

" A corporation is a collection of individuals in 
nnc lj(Kly." (Bronson, J., in People vs. Assessors, 
I Mill, 620.) 

"Corporations are little more than aggregations 
of individuals united for some legitimate purpose 



ESSAYS AND ADDRESSES 221 

and acting as a single body." (McKinley vs. 
Wheeler, 130 U. S., 633.) 

" A corporation is really an association of per- 
sons, and no judicial dictum or legislative enact- 
ment can alter this fact." (i Mora, on Corp., Sec. 
227.) 

" A corporation generally consists of members in 
their natural capacity." (i Waterman on Corp., 
Sec. 5.) 

" Corporations are merely associations of indi- 
viduals united for a special purpose, and permitted 
to do business under a particular name, and have 
a succession of members without dissolution." 
(Pembina vs. Pennsylvania, 125 U. S., 189.) 

" The word ' corporations ' is but a collective 
name for the corporators or members — a corpora- 
tion is not a reality or thing distinct from its con- 
stituent parts." (i Mora., Sec. i.) 

" A corporation and its shareholders are in reality 
the same." (2 Mora, on Corp., Sec. 852.) 

" The shareholders, then, vested with the corpo- 
rate powers, are the body corporate, corporation, or 
company." (Taylor on Corp., Sec. 50.) 

" A stockholder is an integral part of the cor- 
poration," and so without notice to himself, he is 
bound by notice to the corporation. (Sanger vs. 
Upton, 91 U. S., 59; Glenn vs. Soule, 22 Fed. Rep., 

417-) 

" The property of the corporation belongs equita- 
bly to the stockholders; and they are virtually the 
debtors of the creditors of the corporation." (Pet- 



222 ESSAYS AND ADDRESSES 

tibone vs. Toledo, &c., Co., 39 Alb. Law J., 147, 
Mass. Supreme Judical Court ; Bissell vs. R. R. Co., 
22 N. Y., 259.) 

In an action against a corporation stockholders 
are represented by the corporation, and a judgment 
against it conclusively binds them. (Cook on 
Stock, &c.. Sec. 209; Mora., Sec. 865.) 

" The corporation of London is the citizens of 
London." (City, &c., vs. Wood, 12 Modern, 669.) 

'' The people of the locality constitute the politi- 
cal corporation." (Clark vs. Rochester, 24 Barb., 

446, 473-)^ 

The individual members are the corporation, and 
hence citizensliip of members determines Federal 
jurisdiction of the corporation. 

''If the corporation be considered as a mere 
faculty, and not as a company of individuals, who 
in transacting their joint concerns may use a legal 
name, they must be excluded from the courts of 
the Union." (Marshall, C. J., in Bank vs. Dev- 
eaux, 5 Cranch., 61, 87; Louisville vs. Letson, 2 
How. (U. S.), 497. 552.) 

" When the certificate shall have been filed, etc., 
the persons who shall have signed and acknowl- 
edged the same " — and of course their successors — 
'' shall be a body politic and corporate.'' (Act 
1848, Sec. 2.) 

2.— The corporate franchises vest, not in the cor- 
poration, but in the corporators. 

"A grant of corporate existence is a grant of 
special privileges to the corporators, enabling them 



ESSAYS AND ADDRESSES 223 

to act for certain designated purposes as a single in- 
dividual." (Paul vs. Virginia, 8 Wall., 181.) 

" Corporate franchises are privileges conferred by 
grant from the Government, vested in private indi- 
viduals. They contain an implied covenant on the 
part of the Government not to invade the rights 
vested, and on the part of the grantee " (i. e., the 
individuals) " to execute the conditions and duties 
prescribed in the grant." (3 Kent, 458; People vs. 
Utica, 15 Johns., 387; State vs. Bank, 41 Am. Dec, 
112.) 

" The franchise to be and act as a corporation 
vests in the individuals who compose the corpora- 
tion, and not in the corporation itself," and hence, 
does not pass by the assignment of the corporation. 
(Fietsam vs. Hay, 122 111., 293.) 

'' We have supposed, if anything was settled by 
an unbroken course of decisions in the Federal and 
State courts, it was that an act of incorporation 
was a contract between the State and the stock- 
holders. All courts, at this day, are estopped from 
questioning the doctrine." (Davis, J., in Bingham- 
ton Bridge Case, 3 Wall., 51, 73; Wilmington R. R. 
Co. vs. Reid, 13 Wallace, 266; The Delaware R. R. 
Tax Case, 18 Wallace, 225; Erie, &c., vs. Casey, 26 
Pa. St., 287.) 

3. — It results, therefore, obviously and irrefrag- 
ably, that since the corporate franchise vests in the 
corporators, and the act of incorporation constitutes 
a contract between them and the Government, it 
is their act which operates a forfeiture of the fran- 



224 ESSAYS AND ADDRKSSKS 

cliisc, and llirir iniscoiulticl which incurs ihc ])cn- 
ahy <»f forfcilnrc of lln'lr franchise. 

And so arc the aiilhoi-ilics. 

*' Any parlicnlai" nicinhcr of a corporation may be 
(hsfranchiscd <>r lose his place in ihc corporation 
hy acliiiL,^ contrary to \\\c laws of the land." (i 
iilacU (Join., 4(S4, niaridnal. ) 

And, "as every niemher may f(»rf(it thai which 
any nicnilx r iii.iv. the same acts which will forfeit 
the ri^^hts of every nu'mher separately, if done 
jointly hy all the iiicmhers, will he a foi-fcilnre of 
the corporate existence." (2 Kyd, ^/y.) 

When Ihc (piestion is of the non-nscr or ahnse 
of franchises hy a corporation, il must of necessity 
he intendc(l of ihc acts or ncL;liL;iMicc of the nalnral 
|)ersons. (tr ol those oihcers wIkj were t-mpowcrcd hy 
I hem." ( J Kyd, ^yH.) 

** 'I hon.i;h ihc procccdinj;;s he ati^ainsl ihc cor- 
l)orate hody, il is Ihc ads or omissions of the ///- 
dirithial corfun-ators llial is the snhjccl ( d' ihc jndj^- 
ment o| ilic ( oiiii. 'Ill,, powers ;ind pri\ilei4-es arc 
conferrcfl, and llic condilions cnioinccj upon llit'iii; 
they ohlain the «^raiil and cn^^a.^-e to pciform llu- 
condilions." { IVople r-.v. Kin-sloii, ^Kc, J>< W Cnd., 

AceordinKly. in I )enike 7'.v. ( omp.any, Xo N. V., 
Cx)(k il was held Ih.ai " all the slockh. -IdCrs of a cor- 
poration nnilin,!^ mi^hl nnd(.nhlcdly snncndcr llie 
franchises :md w..rk ils dissolnl ion," — .and this 
thon^di the sialnle (Sec. j,|i<,. Code Civ. Pro.) pre- 
scribes thai :i volnntary dissolnlion shall he nnon 



I .YS AXD ADV. S 2^25 

. ..■'■c3-„ 32: Him, 2(6v4..) 

knKoms- aLund inikrfilablxh^ 'dk'J«nd:axrt mil W kcld to 
Tiit'D-d itat dffecl,. Ijodeed, aey vnher ': ®f 

- u, S, 2?39.) 

TW OLSif fltonu is t)-. . - TiK* p< - - ■ >- 

the faoflHtes* 'of ai Il»rv,-»v '.,....... ..n trc>.i..,...v :..;,. ;i ''caf 

'be hmifc&l ifQ nilae j,^..iv.c frciJiin am kiC3nKBL*«rd pro 
■"— " -igj <o)lf TTJ&irKvd siaij^ar. awd lb?' a" nt |;tol1«t 

- . ■ ■ r lira 1: • >- 

•crsv iis MJlTov^ . . . . - : : , a rro:: .:_... .r 

' n««5s, <0)i wkidbi ilje apipamal tj'^^'''' w> ...... e 



226 ESSAYS AND ADDRESSES 

and enhance prices. Indisputably, here is a viola- 
tion of the trust and a breach of the condition upon 
which the corporate franchise was conceded to de- 
fendant. Indisputably defendant's corporate facul- 
ties, instead of conducing to the benefit of the pub- 
lic, are perverted to its detriment, and, consequently, 
it has incurred a forfeiture of its franchises. 

" The stated purpose for w^hich the ' American 
Sugar Refinery Company ' became incorporated 
was the production — the competitive production — 
of sugar to supply human want; the business fran- 
chise granted was not for the sole benefit of the cor- 
poration or its stockholders, but, in a measure, for 
that of the public as well; the understood com- 
mercial policy underlying the grant, and to the 
obsen^ance of which the defendant, by accepting it, 
stood committed, looked to the promotion of trade 
in that commodity — the promotion of trade neces- 
sarily denotes the encouragement of rivalry in the 
business — competition on equal terms is conceded 
to be the life of trade, and to invite and promote 
that competition is the established policy of our 
laws. As competition tends to create trade, so 
monopoly tends to destroy it. This is the axiom 
which underlies the constitution and general legis- 
lation of this State, and upon wdiich the decisions 
of its courts have habitually, not to say uniformly, 
proceeded." (People, &c., vs. The American Sugar 
Kef. Co., 7 Railway & Corp. Law Journal, 86.) 

If a monopoly combination among natural per- 
sons be contrary to law, much more is it so between 



ESSAYS AND ADDRESSES 227 

corporations ; because ultra vires, and because repug- 
nant to the aim of corporate institution, *' the true 
ground and original of corporations being the in- 
crease and advancement of trade and merchan- 
dise." (Sir Robert Atkin's Case, 3 Modern, 12.) 

XXVII 

Independently of the character of the combina- 
tion, i. e., as tending to monopoly and repugnant to 
public policy, defendant, by joining it, did an act 
ultra vires in abuse of its powers, and in perversion 
of its institution; and so incurred the statutory 
penalty, namely, forfeiture of its corporate fran- 
chise. 

I — That defendant was guilty of an excess, and so 
of an abuse, of its powers, in becoming a party to 
the combination, is palpable upon a survey of the 
constitution of The Sugar Refineries Company, and 
its relations to the associated corporations. 

(a) CONSTITUTION OF THE COMPANY 

ist. To have a corporate name — ''The Sugar 
Refineries Company." 

2d. To have a common seal. 

3d. To have a capital stock. 

4th. To divide its capital stock into shares. 

5th. To issue negotiable certificates of stock. 

6th. To have perpetual succession. 

7th. To make by-laws. 

8th. To institute offices. 



228 ESSAYS AND ADDRESSES 

()ili. T(^ have power of amotion. 

And. as the Board consists of more than seve^t 
members, the law annexes to it these additional at- 
trilnites. 

loth. To sue and be sued as a substantive legal en- 
tity (Cck\q Civ. Pro., Sees. 1919, 1920, 1812, 264). 

iith. To take hold and convey property (Laws 
1867, Ch. 289; Waterbury vs. Company, 50 Barb., 

Possessing every faculty of a corporation except 
irresponsibility of members for liabilities of the 
lK:)(ly. the Company is, by the law of New York, a 
Joint Stock Association. (2 Bouvier's Law Diet., 
"Joint Stock Company": Laws 1849, Ch. 258; 
New York Const., Art. 8, Sec. i ; People vs. Wem- 
plc. 7 R. R. & Corp. Law Journal, 127; Water- 
bury 7X Company, 50 Barb., 157; Liverpool Ins. 
Co. 7x Massachusetts, 10 Wallace, 566; Westcott 
7'.^. Faro^o. 6t N. Y., 547; The Bank vs. Vander- 
wcrker, 74 N. Y.. 234; i Waterman on Corp., Sec. 
10; Cook on Stock. 8zc., Sees. 504, 506). 

fh) KELATIOX OF CORPORATIONS TO COMPANY 

1st. The Company is created by the corpo- 
rations. 

2i\. It is called "The Sugar Refineries Com- 
pany." 

V\. The capital stock of " each corporation " — 
not to the shareholders individually — is transferred 
to the lx)ard. 

4th. The corporations "shall be entitled to 



ESSAYS AND ADDRESSES 229 

shares " in the Sugar Refineries Company; and '' of 
the shares allotted to the several refineries," &c. 

5th. The profits arising from each corporation 
shall be paid over by it tO' the board. 

6th. The funds necessary for the board are to 
be raised '' by mortgages to be made by the cor- 
porations." 

7th. The board qualifies trustees of the corpora- 
tions by the transfer of corporate stock " to be re- 
transferred when requested by the board." 

8th. The stock of the corporations is held by the 
board with all the rights and powers incident to 
stockholders in the several corporations. 

9th. The stock of the corporations constitutes 
the only capital of the company. 

loth. The stock of the corporations is ex- 
changed for the stock of " The Sugar Refineries 
Company " — this company taking the place of the 
shareholders in the corporations. Thus, member- 
ship in " The Sugar Refineries Company " is sub- 
stituted for membership in the corporation. 

nth. The corporations, as corporations, are par- 
ties to the instrument creating the board. 

Here, then, is a joint-stock association with a 
capital of $50,000,000, holding all the stock of the 
several corporations, receiving all the profits of the 
several corporations, appointing, in effect, all the 
trustees of the several corporations, and grasping 
an absolute control of the several corporations in 
the conduct of their business and the disposition of 
their property. Plainly it was ultra vires and an 



230 ESSAYS AND ADDRESSES 

abuse of the powers of the corporations to contract 
such relations to sitcJi a body. 

II — ''A statutory corporation is limited as to all 
its powers, by the purposes of its incorporations as 
defined in the act. The Memorandum of Incor- 
poration " (i. e., certificate of incorporation), ''is 
their fundamental and their unalterable law; and 
they are incorporated only for the objects and pur- 
poses expressed in the memorandum " (certificate). 
(Lord Selborne in Ashbury, &c., Co. vs. Riche, L. 
R.. 7 H. L., 653.) 

*' Wlien a corporation is organized through ar- 
ticles of association entered into under general laws, 
the memorandum of association stands in the place 
of a legislative charter, in so far that its powers can- 
not exceed those enumerated therein ; but powers 
enumerated and claimed therein which are not war- 
ranted by statute are void for want of authority." 
(Oregon vs. Ry. Co., 130 U. S., 2; The Eastern, 
&c., vs. Vaughan, 14 N. Y., 546, 551; People vs. 
Chicago Gas Trust, supra.) 

By Section i, Act 1848, the certificate of incor- 
poration must state the objects for which the " com- 
pany is formed," and '' the purpose of the organiza- 
ti(Hi is limited to one of the general classes of busi- 
ness, designated in the act, as manufacturing, min- 
ing, mechanical or chemical." (The People vs. 
Beach. 10 II un, 260.) 

Defendant's declared object is " the manufacture 
and sale of sugar, syrups and molasses." Thus, 
neither by their charter, nor by the Act of 1848, nor 



ESSAYS AND ADDRESSES 231 

by the general statute defining corporate powers 
(Rev. Stat., Section i, Title 3, Ch. 18, Part i), have 
these corporations authority to contract the alliance 
with the Sugar Refineries Company. 

" A corporation so formed is a manufacturing 
corporation with powers limited to the accomplish- 
ment of the purposes so declared." (Astor vs. Ar- 
cade R. Co., 113 N. Y., 93.) 

Ill — A corporation cannot be created merely for 
the purpose of consolidating with another. 
(Church vs. Perry, 20 N. Y. State Rep., 633.) 

A corporation can make no contract which is not 
necessary, directly or incidentally, to enable it to 
answer the purpose of its charter. (Beach vs. Ful- 
ton, 3 Wend., 573 ; Legnard vs. Association, 80 N. 
Y., 638; Millbank vs. R. R. Co., 64 How., 23-25; 
Rock River vs. Sherwood, 10 Wise, 230; Abbey 
vs. Billups, 35 Miss., 618; Davis vs. Old Colony, 
131 Mass., 258; Pierce on Railroads, 500, note; 
Boone on Corp., Sec. 43.) 

Hence, held that a gas company cannot purchase 
the stock of another company, because '' there is no 
necessary connection between manufacturing gas 
and buying stock." (People vs. Chicago Gas Trust, 
22 Chicago Legal News, 107.) 

IV — The connection with '' The Sugar Refineries 
Company " is not necessary to enable the corpora- 
tions to answer the end of their existence ; nor is the 
contract of connection made in the legitimate prose- 
cution of their business, and hence, the contract and 
connection are ultra vires and an abuse of corporate 



27,2 ESSAYS AND ADDRESSES 

power. (People vs. Chicago Gas Trust, 22 Chi- 
cago Legal News, 107; Hood vs. R. R. Co., 22 
Conn., I ; rVanklin vs. Lewiston, 68 Maine, 43.) 

XXVIII 

The combination between the several corpora- 
tions, resulting from the transfer of their stock to 
the lx)ard, *' subject to the purposes set forth in this 
deed," if not in legal conception, is in practical 
effect an amalgamation or consolidation of these 
corporations — ■ or, at all events, a copartnership 
between them. (Pittsburg vs. McMillin, 53 Hun, 
67, 69; Champion vs. Bostwick, 18 Wend., 175, 
183 ; Burnett vs. Snyder, 81 N. Y., 555 ; Stroker vs. 
Elting, 97 N. Y., 102, 105.) 

Indeed, that the combination constitutes a part- 
nership between the corporations is conceded by the 
a]X)logists of the Trust. (Prof. Dwight's Essay, 
3 Political Science Quarterly, 624.) 

I — The avowed object of the combination was a 
consolidation of the several corporations (folios 
107. 119.) 

II — And such is the result. 

1st. The stockholders in each are stockholders 
in all — indeed, the stock of all is blended in a 
single and indistinguishable mass. 

2fl. The profits of each are the profits of all, and 
the losses of each the losses of all; and thus an ab- 
solute unity and identity of interest pervades the 
aggregate of associated corporations. 

3d. The voting powder in each is the voting 



ESSAYS AND ADDRESSES 233 

power in all; and so an aboslute unity and identity 
of control dominates and directs the action of the 
aggregate of associated corporations. 

4th. Here, then, is an organic union — a fusion 
of separate individualities in an indivisible unit — 
in short, an amalgamation and consolidation of the 
distinct corporate existences; and the several and 
separate entity of each corporation is a mere fiction, 
without practical force or efficacy. 

5th. A common name, '' The Sugar Refineries 
Company," distinguishes the unity of combination 
into which the several corporations are consolidated. 

6th. The association involves the essential and 
decisive principles of partnership; namely, a com- 
munity of capital — the stock contributed to the 
1. board by the several corporations — and a com- 
munity of profit and loss among the members of 
the association. 

Ill — But, " corporations cannot consolidate their 
funds or form a partnership, unless authorized by 
express grant or necessary implication." (The N. 
Y. Canal Co. vs. Sharon, 7 Wend., 412.) 

" Without legislative authority corporations 
organized separately cannot merge and consolidate 
their interests." (Clearwater vs. Meredith, i 
Wall., 25, 29.) 

In Massachusetts (as in New York) the exclusive 
management of manufacturing corporations is 
vested in the trustees; and hence, held that such a 
corporation has no power to form a copartnership ; 
because, first, it would subject the corporation to 



234 ESSAYS AND ADDRESSES 

the control of the partner, and, secondly, would sub- 
ject the corporation to the copartnership liabilities. 
(W'hittenton vs. Upton, lo Gray, 596-597-) 

*' An agreement that the profits and loss shall be 
brought into one common fund and the net receipts 
divided, without the authority of an act of Parlia- 
ment, appears to me clearly and palpably illegal; 
otherwise it might be that all the railways in the 
kingdom might be collected into one vast joint-stock 
concern." (V. C. Wood in Charlton vs. R'ys, 5 
Jurist N. S., 1096, 1 100.) 

" There was no authority of law to consolidate 
these two corporations, and to place both under the 
same management, or to subject the capital of one 
to answer for the other." (Pearce vs. R. R. Co., 
21 How. U. S., 443.) 

" Contracts between corporations which create 
in fact, if not in name, partnerships, are void on the 
double ground of being ultra vires and also contrary 
to ])uljlic policy." (Green's Brice, 416, 425 (2d 
Ed.) 

" A corporation cannot enter any arrangement 
amounting to a virtual consolidation or partner- 
ship." (i Morawetz on Corp., Sec. 376, ace. A. 
& A. on Corp., Sec. 272; Parsons on Partnership, p. 
29; Marine Bank vs. Ogden, 29 111., 248 ; Taylor on 
Corp., Sees. 419-420; Mallory vs. Oil Works, 2 
Pickle (Tenn.), 598; Pierson vs. McCurdy, 33 
Hiin. 520, 522; French vs. Donohue, 29 Minn., 
Ill: Coleman vs. R'y Co., 10 Beavan, i.) 

" Of what avail is it that any number of gas 



ESSAYS AND ADDRESSES 235 

companies may be formed under the general law, 
if a giant trust company can be clothed with the 
power of holding the stock and property of such 
companies, and through the control thereby ob- 
tained, can direct all their operations, and weld them 
into one huge combination?" (People vs. Chi- 
cago Gas Trust Co., supra.) 

And although corporations under the acts sup- 
plementary to the Act of 1848 have a cjualified 
right of consolidation, yet here is no such consoli- 
dation as the statute allows and prescribes. All 
statutory formalities must be complied with, to per- 
fect a consolidation. (Peninsular R. R. Co. vs. 
Thorp, 28 Mich., 506; Tuttle vs. R. R. Co., 35 
Mich., 247.) 

XXIX 

Defendant corporation has forfeited its char- 
ter by the transfer of its control to " The Sugar Re- 
fineries Company." 

I. — "The Sugar Refineries Company" is a body 
or board foreign to defendant corporation — not 
recognized by its charter — and this body or board, 
by virtue of its right to vote defendant's stock, 
dominates it by an absolute and exclusive control. 
The autonomy of the constituent corporations is 
abolished; and they become mere subordinates and 
satellites of the central and supreme syndicate. 

" The corporations thus associated renounce 
autonomy. . . . The stock was transferred to 



236 ESSAYS AND ADDRESSES 

the trust, not for the purpose of being sold, but to 
^ivc control of the corporations; to make the of- 
ficers puppets in the hands of the trust, and thus 
substitute the latter as the governing body of the 
corporations." (Gould vs. Head, 38 Fed. Rep., 
888. ) 

** Transfer of all stock to the board gave the 
board control of the corporate policy and man- 
agement of the corporate business." (People vs. 
American Sugar Refining Co., 7 Railway & Corp. 
Jour., 84, 85.) 

2. — By Section 3, Act 1848, the exclusive manage- 
ment of " the stock, property and concerns " of de- 
fendant is vested in its board of trustees, them- 
selves to be stockholders, and to be chosen by the 
stockholders. Here, the trustees are appointed by 
the board, and they are stockholders only in name, 
hcjlding their stock by transfer from the board, and 
compellable on demand to retransfer it to the board; 
and it was an act nlfra vires for defendant to sur- 
render its control and management to '' The Sugar 
Refineries Company " ; and so, defendant has for- 
feited its charter by '' offending against the Act by 
and under which it was created." (Code Civ. 
IVo.. Sec. 1798.) 

In the Central R. R. Co. vs. Collins, 40 Ga., 583, 
tlie Court say: " It is a part of the public policy 
of the State to secure a reasonable competition be- 
tween its railroads, and it is contrary to that policy 
for one of said roads to attempt to secure a con- 
trolling interest in another by the purchase of its 



ESSAYS AND ADDRESSES 237 

stock; and any contract made with that view is 
illegal." 

" The purchase by one R. R. Company of the 
stock of another, with the object of preventing com- 
petition, is against public policy and void." (El- 
kins vs. R. R. Co, 36, N. J. Eq., 5.) 

" Transfers of powers of one corporation to an- 
other, without the authority of the Legislature, are 
against public policy." (Chicago, &c., vs. Gas Co., 
2 Am. State Reports, 124.) 

In Bradford, &c., R. R. Co. vs. N. Y., &c., R. R. 
Co., 16 N. Y. State Reporter, 208, the case was this : 
The Bradford R. R. Co., a tributary of the N. Y., 
Lake Erie and Western R. R. Company, desired the 
assistance of the latter company in the completion 
of its road, and to that end the Bradford Company 
engaged " to cause to be deposited " with the Erie 
Company '' a majority of its capital stock," so as 
to give the Erie Company " the right to vote upon 
the stock so deposited." Accordingly, " a majority 
of the owners of the Bradford Company stock de- 
posited it with the Erie Company," but the Court, 
per Daniels, J., held the agreement illegal, because 
it so transferred the control of the Bradford Com- 
pany to the Erie Company. 

This case is obviously identical with the present 
as to the point in discussion ; but the principle is 
established by abundant authority. (Whitterton 
vs. Upton, 10 Gray, 596-7; Simpson vs. Denison, 
10 Hare, 51 ; Richmond vs. Vestry, 3 Ch. Div., 82; 
Winch vs. Birkenhend, 5 DeG. & Sim., 567; Be- 



238 ESSAYS AND ADDRESSES 

man z'S. Rufford, 6 Eng. L. & Eq., 106; Hafer vs. 
R. R. Co., 19 Abb. N. C, 454; Vanclerbilt vs. Ben- 
nett, 19 Abb. N. C, 460; Thomas vs. R. R. Co., loi 
U. S., Ss; Ohio & Miss., &c., vs. R. R. Co., 5 Am. 
Law Register (N. S), 733.) 

'' During the argument counsel invoked the aid 
of the undoubted general principle that the owner- 
ship of shares of stock, as of other property, carries 
with it the legal right to sell, and contended that 
the owners of the shares of the South Pennsylvania 
Railroad Company could not legally be restrained 
from so doing, and that an injunction against the 
purchaser would have that effect. We do not think 
the principle applies to this case. We are not 
called upon to express any opinion as to the right of 
the individual shareholders to sell their several 
shares bojia Me in the open market. This, so far 
as they are concerned, is an intended sale in com- 
bination for the express purpose of enabling them 
to abandon the rights and duties conferred and im- 
posed upon them by the act incorporating the com- 
pany and of putting the control of their corpora- 
tion into the hands of its rival. This is an act con- 
trary to the public policy of the State, which they 
have no right to do." (Penn. R. R. Co. vs. Com- 
monwealth, 7 Atl. Rep., 373.) 

^ *' It is against public policy to permit one corpora- 
tion to embarrass and control another and per- 
haps competing corporation in the management of 
its affairs, as may be done if it is permitted to pur- 



ESSAYS AND ADDRESSES 239 

chase and vote upon the stock." (Milbank vs. R. 
R. Co., 64 How., 28.) 

" That an individual stockholder in a private cor- 
poration formed for business purposes may, at will, 
transfer to another his shares of stock is of course 
not to be questioned, neither it is doubted that any 
number, even all, of the stockholders may by con- 
cert had between them sell their shares and sell 
them to a purchaser previously agreed upon by all. 
But to my mind it is equally clear that when, as the 
necessary legal result of such a sale of stock, a trans- 
fer of the corporate franchise has been effected, 
the State — the people — who granted the fran- 
chise, granted it upon conditions to be observed and 
fulfilled by the grantee, may institute an inquiry — 
legislative, .through their political representatives, 
or judicial, through the instrumentality of their 
courts — an inquiry into the purpose for which the 
franchise has been so transferred, an inquiry 
whether such purpose be in itself lawful or unlaw- 
ful, and whether as the result of such transfer the 
franchise is employed in such manner or in a busi- 
ness of such a character as operates a breach of the 
conditions annexed to the grant." (People vs. 
American Sugar Refinery Company, 7 Railway & 
Corp. Law Journal, 86.) 

And held of this identical combination, that by 
becoming a party to it a corporation surrendered its 
business to the Sugar Refineries Company, and so 
forfeited its charter. (Id., p. 83.) 



240 ESSAYS AND ADDRESSES 

XXX 

It results from the relations of the corporations 
to the Sugar Refineries Company that the former 
are subject to the absolute control of the latter by- 
virtue its power to vote their stock and to appoint 
their trustees. 

'' It cannot be denied that the appellee, as owner 
of the majority of the shares of stock of the com- 
panies, can control them in the exercise of all their 
corporate powers, through a board of management 
of its own selection." (People vs. Chicago Gas 
Trust, supra.) 

If, then, it be to the interest of the combination 
to stop the operations of particular refineries, the 
board, we may be sure, will arrest their operations. 
But, as the price of sugar, and so the profits of the 
crjmbination, can be augmented only by diminish- 
ing the supply of sugar, it follows that the power of 
the board, actuated by interest, will be exerted to 
discontinue or to lessen the production of refin- 
eries. 

And so it was ultra vires and contrary to public 
policy for the corporations to subject themselves 
U} tliis destroying power of the board. 

" The right of incorporation conferred under the 
general law, is in the nature of a contract. In re- 
turn for the powers and franchises granted, the cor- 
poration is ])laced under obligation to perform cer- 
tain duties to the public, and it cannot, without the 
consent of the other party to the contract, absolve 



ESSAYS AND ADDRESSES 241 

itself from its obligations." (Abbott vs. R. R. 
Co., 80 N. Y., 27.) 

'' The privileges awarded to the four gas com- 
panies under their respective charters, were given 
them in return for, and in consideration of services 
to be rendered by them to the public. The public 
duty is imposed upon each company separately, and 
not upon the four when combined together. Each 
for itself, when it accepted its articles of associa- 
tion, assumed an obligation to perform the objects 
of its incorporation. But, the appellee, through the 
control which it does or may exercise over the com- 
panies by reason of its ownership of a majority of 
stock, renders it impossible for them to discharge 
their public duties, except at the dictation of an 
outside force, and in the manner prescribed by a 
corporation operating independently of them. The 
freedom and effectiveness of their action are seri- 
ously interfered with, if not actually destroyed. 
A power whose exercise leads to such a result can- 
not be lawfully entrusted to any corporate body." 
(People vs. Chicago Gas Trust, supra.) 

XXXI 

Defendant has forfeited its charter, by procur- 
ing and permitting its management to be conducted 
in another interest than that of its own stockholders. 

*' It is the duty of the corporate management to 
conduct the affairs of the corporation in the interests 
of the shareholders as such, and the management is 
not justified in promoting the outside interests of a 



242 ESSAYS AND ADDRESSES 

majority of shareholders in disregard of the inter- 
est in the corporate enterprise of ever so small a 
minority." (Taylor on Corp., Sec. 558; Milbank 
I's. R. R. Co., 64 How., 29.) 

But here, obviously, the management of defend- 
ant corporation is controlled, not by its own proper 
and peculiar officers, but by the central and supreme 
syndicate; and this syndicate represents not the 
special interests of defendant's stockholders, but the 
general interests of the confederated corporations. 

The holders of trust certificates are not ipso facto 
and necessarily owners of the corporate stock ; cer- 
tificate holders and stockholders are not identical. 
The certificates pass from hand to hand, and their 
transfer involves no assignment of the corporate 
stock. No certificate holder is owner of stock in 
any specific corporation. The holder of a trust cer- 
tificate is interested in the welfare of no particular 
corporation, but only in the aggregate earnings of 
the combined corporations. But, the interest of the 
combination may be inconsistent with the interest 
of an individual corporation; for the profits of the 
combination are increased by the restriction of pro- 
duction, and restriction of production implies sup- 
pression of particular corporations. Hence, by 
means of the control of the board over each corpora- 
tion, tlie interest of any corporation and its stock- 
h. elders may be sacrificed to the general interest of 
the coml^ination. 

1 1 it be answered that a certificate holder whose 
J^cnp IS a substitute for stock in a suppressed and 



ESSAYS AND ADDRESSES 243 

idle corporation is compensated by the increased 
dividends of the combination, then it appears that 
the earnings of a profit-producing corporation are 
appropriated, not to those who own the capital of 
w^hich the profits are the product, but are divided 
with stockholders of other corporations. 

In a word, by operation of the system, each cor- 
poration shares the losses and partakes the profits 
of every other corporation. 

Indisputably, it is in the general interest of the 
combination, and not for its own special benefit and 
aggrandizement, that defendant corporation is con- 
ducted. 

But a corporation is " bound to apply its funds 
for the purposes directed and provided for by the 
act of incorporation, and for no other purpose what- 
ever; and a contract to do something beyond is an 
illegal act." (Pearce vs. R. R. Co., 21 How. U. S., 
443; Berry vs. Hayes, 24 Barb., 212; East Anglia, 
&c., vs. Ry. Co., 7 Eng., L. & Eq., 505.) 

XXXII 

By the transfer of defendant's stock to the Sugar 
Refineries Company, " subject to the purposes of 
this deed," the law forbidding the suspension of 
the absolute ownership of personal property was 
violated. 

I. — ^The board of the " Sugar Refineries Com- 
pany " holds the stock of the several companies by a 
tenure which constitutes an illegal perpetuity. 

The board do not hold the stock as owners; in 



J44 ESSAYS AND ADDRESSES 

terms they hold it only " as trustees." There can 
he no purchase without a price; and the board 
neither paid nor promised a dollar for the stock. 
The eertihcates they issued are merely evidence of 
the holders' title to the stock, and right to the re- 
ceipt of a dividend on it. 

J. — Holding the stock as trustees they hold it in 
perpetuity; for there is no limit of time to their ten- 
ure, and neither they nor the certificate owners can 
dispose of the stock. (Gould vs. Head, 38 Fed. 
Rep., 886.) 

3. — The statute provides that '' the absolute 
ownership of personal property shall not be sus- 
pended for more than two lives." (i Edmonds' 
Stat. (2d Ed.), 727.) 

4- — And this provision is to conserve an essential 
interest of public policy. 

" A perpetuity is a thing odious in the law and 
destructive to the commonwealth; it would stop 
commerce and prevent the circulation of property." 
(Lord Tlardwicke, Ch., in Duke of Norfolk's Case, 
I Vern., 164; 2 Black. Com., 268 et seq.; 4 Kent, 
2S7; JMsher vs. Bush, 35 Hunt, 643; Will of 
O'Hara, 95 N. Y., 404, 422; Schettler vs. Smith, 
41 N. Y., 328.) 

Much more in a republic is the free circulation of 
pn)i)erty the life-blood of the commonwealth; and 
hence the statutory prohibition of mortmains and 
entails. 

" All experience shows that large accumulations 
of property in hands likely to keep it intact for a 



ESSAYS AND ADDRESSES 245 

long period, are dangerous to the public weal. 
Having perpetual succession any kind of corpora- 
tion (joint-stock associations) has peculiar facili- 
ties for such accumulations. Freed as such bodies 
are from the sure bound to the schemes of indi- 
viduals — the grave — they are able to add field to 
field, and power to power, until they become en- 
tirely too strong for that society which is made up 
of those whose plans are limited to a single life." 
(Central R. R. Co., 40 Ga., 629.) 

5. — ^The need of a strict and punitive enforcement 
of the statutes forbidding perpetuity against cor- 
porations by revocation of their charters is easily 
demonstrated, if, indeed, it be not obvious. Every 
act of incorporation creates, ex necessitate rei, a 
perpetuity in a certain sense. A corporation may 
be made practically immortal. It may survive a 
hundred consecutive lives. So long as it subsists it 
holds and may hold its property, real and personal, 
from alienations and exchanges. This possibility 
the laAV recognizes and has to permit. It, therefore, 
provides at the outset limitations upon the property- 
holding capacity of corporations. It, moreover, 
insists that such property shall be actively used, 
and that the world outside the corporation shall 
receive the benefits growing from the use of such 
property in some form of commerce, investment or 
production. Hence arise the statutes that provide 
for the annulment of corporate charters in cases of 
non-user. 

If an individual attempts to impose a perpetuity 



246 ESSAYS AND ADDRESSES 

upon his property, either by deed or will, there are 
numerous intluences that are immediately brought 
to bear to procure the destruction of such perpetuity. 
The interests of heirs and next of kin and credi- 
tors are directly asserted to procure the annulment 
of the illegal instrument. But in the case of a 
corporation these disturbing causes are in most cases 
absent. Stockholders, so long as the business of 
the corporation is attended with profit, will not com- 
plain, even if such a disposition of the property of 
the corporation has been made as is prohibited by 
the statute. They will rather conspire together 
and co-operate with each other to uphold the un- 
lawful disposition. 

It is not to be believed that the astute and learned 
minds that devised the scheme put in operation by 
the trust deed, had forgotten or overlooked the 
statutes against perpetuities. They proceeded upon 
the theory that the interests of all the parties to 
such deed would prevent the question of its legality 
ever l)eing raised. It was for the advantage of the 
stockh(jl(lers and the trustees that the terms of the 
trust should be carried out. It was inconsistent 
with the interest of very stockholder to attack the 
trust and as.sert its invalidity, but, as an additional 
safeguard against possible caprice or resentment on 
the part of stockholders, the scheme of the trust 
proviflcd tliat the trust itself should be the stock- 
holder. Whether or not the trust, the Sugar Re- 
fineries Company, be in effect a corporation in it- 
self, the main quality of a corporation was imparted 



ESSAYS AND ADDRESSES 247 

to it — perpetual succession. The attempt was 
made to give it immortality for the purpose of 
maintaining an unlawful suspension and perpetuity, 
and upon the unlawful scheme of suspension the 
trust itself was made to rest. 

It will not aid the contention of the defense to as- 
sert that the statute vindicated itself, and that the 
attempt to create an unlawful suspension was fu- 
tile, and that none in fact was created, because none 
could be created. 

The stock was actually delivered to the trustees 
under the deed, and the trustees assumed and en- 
tered upon their trust, unlawful though it was. All 
the parties concurred in the combination and co- 
operated to make it effective. 

The reasoning of Mr. Justice Peckham, in pre- 
senting the decision of the Court of Appeals in a 
recent case, is convincing against the theory that the 
statute vindicated itself. 

" The argument is, the corporation would answer 
a claim to forfeit the charter by the fact that the 
charter precluded it from taking such property, and, 
therefore, as it could not, it had not done so. I do 
not see the force of the argument. The charter 
may preclude the rightful taking of the property 
by the corporation and may prevent the legal title 
from vesting in it, but that has nothing to do with 
the fact that, nevertheless, the corporation has, as a 
physical act, taken the property and may be insist- 
ing upon its right to keep it as a matter of law. In 
such case can there be any doubt that the corpora- 



24<S ESSAYS AND ADDRESSES 

tion has taken and is holding the property as its 
own, and in defiance of the charter, although the 
rightful owner of the property may thereafter ob- 
tain his ow^n? The fact that he does obtain it is no 
answer to the other fact that the corporation had 
taken it, nor is it any legal answer to the claim of 
forfeiture of the charter on the part of the State, 
that it was unsuccessful in continuing to hold the 
property against the charter provisions." (In the 
Matter of McGraw, iii N. Y., io6.) 

Wherefore, the only possible procedure by which 
the statute against perpetuity can be enforced in 
this case, and the policy of the law vindicated, is an 
action by the People, not to set aside the trust deed, 
for the People have no property interests that w^ould 
warrant such a suit by them, but an action to annul 
and dissolve the corporation, under the statute. 

C 

The judgment should be affirmed. 



INDEX 



INDEX 



INDEPENDENCE OF THE SOUTH 

Abolitionism, crusade of, 15. 
Absolute power, no interest safe 

against, 23. 
Administration, unfriendly, 24. 
Alabama, independent republic, 12. 
American liberty, only safeguard 

of, 22. 
Austrian absolutism, 22. 

Botele's proposition, 24. 

Charleston, compulsory collec- 
tion of revenues at, 25. 
Civil war about to be perpetrated, 

Constitution, integrity of, safe- 
guard of liberty, 23. 
superseded by Lincoln's plat- 
form, 25. 
war fatal to, 28. 
Constitution's recognition of slav- 
ery, 15. 

Discord, sectional, 14. 

Florida, independent republic, 12. 
Fugitive slaves, restitution of, 
19-20. 

Georgia, independent republic, 12. 
Government, south's support of, 
13. 

Hungary, revolt of, 22. 
Independence of the South, 11- 

Independent republics of South 
Carolina, Mississippi, Flor- 
ida, i\labama, Georgia, 
Louisiana, 12. 

Invasion of rights, 14. 

Ireland's wrongs, 28. 

Irrepressible conflict, 25. 

Italy, revolutionists of, 22, 

Jefferson, a secessionist, 21-22. 

only safe- 



Liberty, American, 
guard of, 23. 



Lincoln, an obnoxious ruler of 

an unwilling people, 26. 
election of, a proclamation of 

war, 23. 
Lincoln's platform supersedes 

Constitution, 25. 
Louisiana, independent republic, 

12, 

Mississippi, independent republic, 
12. 

New England, importance of 
manufacturing interests, 16. 
navigation of, 23. 
North, denied no facility of trade 
by South, 13. 
slavery in the, 14. 
Virginia's contribution to. 14. 

Pacific propositions, South's sup- 
port of, 24. 

iPeace or war. issue before 
the country, 12. 

Pennsylvania, iron interests of, 

23- 

Power, absolute, no interest safe 
against, 23. 



Republican party insistent 

war, 25, 26, 28. 
Republics, independent, 12. 
Rights, invasion of, 14. 



for 



Secession, 26-27. 

of colonies, 21. 

public interest in, 11. 

South's right of, 27. 

Virginia's right to, 27. 
Secessionist, Jefferson a, 21-22. 

statement of their cause, 11-31. 

Washington a, 21-22. 
Sectional discord, 14. 
Slave-holding states, grievances 
of, 16, et seq. 



Slavery, 22, 23. 
constitution's 

importance of, 
in the North, 
in the South, 



251 



impositions upon, 15. 



recognition of, 

15. 
14. 
14. 



25^ 



INDEX 



pecuniary value of, 15. 

South's vindication rests not on 
issue of, 16. 
Slaves, restitution of fugitive, 

19 .20. 
South, a unit in resistance, 29. 

cause of, 21. 

defense of, 20-21. 

demands protection from sec- 
tional despotism, 22. 

denies North no facility of 
trade, 13. 

grievances of, 16, et scq. 

independence of the, 11. 

innocent of impending conflict, 

13- 

rights of. no longer secure, 24. 

slavery in the, 14. 

social system "the sum of all 
villainies," 19. 

solicits recognition, 22. 

subject to intolerable tyranny, 
21. 

taxed against her consent, 22. 

unconquerable, 28-29. 

took up arms, why, 21. 
South's e<iualily among sover- 
eigns of the earth, 31. 

loyalty, how requited, 14. 

support of Government, 13. 

support of pacific propositions, 
24. 

vindication rests not on is- 
sue of slavery, 16. 
South Carolina denied postal fa- 
cilities, 25. 

indcpcnrk-nt republic, 12. 
Sovereignties, co-ecjual. 27. 
Sovereignty, State, right to re- 
sume, 26-27. 

Virginia's right to resume, 27. 
States, slave-luilding, grievances 
of. 16. et scq. 

subjugation of retiring, 13. 

TAIirrs, burden of unequal, 14. 

Umion, itllc talk of preserving, 12. 

Virginia's contribution to North, 
14. 
right to secede, 27. 
\Va«. election of Lincoln, a proc- 
lamation of, 23. 
fatal to Constitution, 28, 
l»cacc or, i.ssuc before the coun- 
try. 12. 
proclamation of, .in overt act, 

Rejiublican party insistent for, 
J1. 26. 2H. 
Wa»hnigton a secessionist, 21-22. 



THE SUFFICIENCY OF THE NEW 
AMENDMENTS 

Amendments, crowning glory of, 

39- 

earlier, only limitations of Fed- 
eral power, 36, Z7. 
Amendment, fifteenth, 46, 47, 48, 

49. 50. 
fourteenth, 46. 
monuments of human freedom 

and progress, 51. 
radical modifications effected 

by, 35, 36. 
sufficiency of the new, 35-51. 
American people safeguarded by 

state and nation, 39. 
Articles of Confederation, 42. 
Attainder, bills of, 36. 

Bronson, J., 38, note. 

Chinaman shielded from hostile 

discrimination, 39. 
Citizens, colored, anxiety as to 

constitutional rights, 35. 
Citizenship, birthright of negro, 

39. 
national, 42-43, 44. 
of the State, 42. 
Confederation, Articles of, 42. 
Congress armed with plenary 

power, 45. 
Constitution of 1787, 42, 43. 
Constitution, quoted, 36, 38. 
State, only safeguards, 36. 
story on the (note), 43. 
"Constitutional advances," 38. 
Contracts, obligations of, 36. 
Corporations, protected from un- 
equal exactions, 39. 

Declaration of Independence, 37, 
51. 

Elective franchise, Judge Tour- 

g^e's criticism of, 45. 
IClectoral college, 47. 
Hx post facto laws, 36. 

I'reedom of the press, 27- 

of religion, 37. 

of speech, 37. 
Freemen, rights of, 37. 

Independence, Declaration of, 

.37. SI. 
Invasion of person or property, 

immunity from arbitrary, 

38. 

"Judicial construction," 37. 



INDEX 



253 



"Laws, no State shall deny to 
any person the equal pro- 
tection of the," 38, 

"Life, liberty, or property, no 
State shall deprive any per- 
son of," etc., 38. 

Magna charta, 51. 

Nation is supreme, 55. 
National citizenship, 42-43, 44. 
Negro, citizenship birthright of, 

39- 
secured an impartial jury, 39. 
suffrage, 45, et seq. 
Nullification, 40, et seq. 

People, American, safeguarded 

by State and nation, 39. 
Poor, equal law for rich and, 39. 
Press, freedom of the, 37. 

Religion, freedom of, 37. 

Rich, equal law for poor and, 39. 

Secession, 40 et. seq. 

no longer practicable, 42. 
Searches and seizures, security 

against unreasonable, 37. 
Shannon v. Hill (note), 43. 
Slaughter-house cases (notes), 43, 

44. 
Slavery, effaced, 39. 
Slaves, fugitive, 49. 
Sovereignty, State, 40. 
Speech, freedom of, 37. 
State autonomy, 46. 

citizenship of, 42. 

sovereignty, 40. 

TouRGEE, Judge, 35, 36, 38, 40, 

41, 45, 46, 48, 49, 50. 
Trial, right of speedy, 37. 

Union, allegiance to, 43-44. 

Yarborough, exports (notes), 45, 
47- 

THE SOLDIER THE FRIEND OF PEACE 
AND UNION 

Abolition agitation, 58. 
Alien and sedition laws, 75. 
America, conquest of, impossible, 

79- 
Annapolis, conference at (1786), 

. 70. 
Antietam, 62-63. 
Armies, contended, intermingled 

for aid, 63. 
Austria-Hungary, 69. 



"Bloody shirt," 66. 
Bourbons, Vendeean, 69. 

California annexed, 71. 

Catlin, General, 55. 

Cerro Gordo, 58. 

Chatham, Lord, boast of, 69. 

Chippewa, 58. 

Constitution, 66. 

Confederacy, weakness of its plan 

of government, 74-75. 
Confederate soldier, all was lost 
to, 61. 
fealty to Union, 70. 
tribute of a, 67. 
vindicates sincerity of convic- 
tion, 62. 
soldiers, first reunion of Union 
_ and, 55. 
Conciliation, benefits of policy of, 

7°-. 
Constitution, politicians nullified, 

58. 

Falkland, Lord, 59. 
Federal domination, 65. 
Florence, 69. 
Fronde, war of, 68-69. 

Genoa, 69. 

Germany, united, 69. 
Grant, Ulysses S., 62, 63, 79. 
Great Britain, 69. 
Greene, Fort, 79 (note). 
Nathanael, 78. 

Hamilton, Alexander, 79. 
Hayes-Tilden controversy, 77. 

Ireland, 69, 70. 

Irrepressible conflict, 75. 
Italian nationalism, 69. 

Jackson, Andrew, 79. 

"Stonewall," 79. 
Jefferson, Thomas, 71, 79. 
Johnston, Joseph E., 63. 

Lee, Robert E., 59, 62, 63, 79. 

surrender of, 63. 
Long Island, Battle of, 79 (note). 
"Lost Cause," 63, 74. 
Louisiana, deliverance of, 65. 

loyalty of, 66-67. 

purchase, 71. 
Lucknow, 69. 

INTarshall, John, 71. 

McDonough, 79. 

Meagher, Thomas Francis, 63. 



^54 



INDEX 



Memorial Day, first joint observ- 
ance of, by Union and 
Confederate soldiers, 55- 

Mexico, Capital of, 70. 

Missouri Compromise, 58, 75. 

Monroe Doctrine, 71. 
James, 71. 

Montgomery, Richard, 78. 

Napoleon, 68-69. 

National unity developed by war, 

68. 
Negro suffrage, 73. 
New Orleans, contending armies 

fraternize in, 65. 
New York determined compact of 

union, 70. 
Norway and Sweden, 69. 
Nullification (note), 59. 

Philadelphia, Convention at, 70. 
Toliticians fomented war, 58. 

nullified Constitution, 58. 
"Prostrate State," 66. 
Pryor, Roger A., on battlefield, 

63. 
Putnam, Israel, 78. 

Raleigh, capitulation of, 64. 
Randolph, John, 70. 
Reconstruction, 64, 65. 
Revolution, heroes of, 79. 

French, 69. 
Rome, 69. 

Sadowa, victory of, 69. 
Scotland. 69, 70. 
Scott, Winfield. 58, 70. 
Secession, 57, 58, 72, 74, 75. 

slavery the occasion of, 75. 

war of, soldiers not resi)onsible 
for, 62. 
Sherman, William T., 63, 79. 
Slavery, 58, 72, 76. 

occasion of secession, 75. 
Soldier, Confederate, cause for 
which he fought, 60-61. 

Confederate free from reproach 
of conscious wrong, 61. 

the friend of peace and union, 

TT . 55-79- 

Union, cause for which he 

fought, 60-61. 
Soldiers not responsible for war, 

57 et seq. 
South, causes of its resistance of 

the Federal Government in 

1861, 76-77. 
desolated, 61. 
only a geographical expression, 

67. 



strength and security, where 
found, 72. 
Southern statesmen, services of, 

70-71. 
South's part in building the Un- 
ion, 70. 
South Carolina, troops occupy 

capitol of, 64. 
Sovereignty, State, 60, 66. 
State, autonomy of, 65. 
"prostrate," 66. 
sovereignty, 60, 66, 72, 75, 76, 

77- 
Subjugation of 1849, 69. 
Suffrage, negro, 73. 
Supreme Court, 58. 
Sweden and Norway, 69. 

Tariff of 1833, 75. 
Texas, annexation, 71. 
Tilden-Hayes controversy, 77. 

Union, idea originated, 70. 

plan propounded, 70. 

re-established, 66. 

soldiers, first reunion of Con- 
federate and, 55. 

supreme reward of, 67-68. 
South's fidelity to, 71-74. 

Venice, 69. 

Vendeean Bourbons, 69. 
Virginia determined compact of 
union, 70. 

War, inhumanities of, cabinet re- 
sponsible for, 62. 
of secession, soldiers not re- 
sponsible for, 62. 
of 1812, 71. 
the consummation of human 

woe, 60. 
politicians responsible for, 62. 
Washington, George, 70, 78. 
Waterloo, 69. 

THE general grant ANNIVERSARY 

Appomattox, 84. 

Donelson, Fort, 84. 

Grant, General, an historic fig- 
ure, 86. 

anniversary, 83-86. 

as President, 85. 

campaign in the East, 84; in 
the West, 84. 

his service to the Union, 85- 
86. 

magnanimity and clemency of, 
8s. 

simplicity of his character, 86. 



INDEX 



255 



Johnston, Joseph E., 84. 

Lee, Robert E., 84. 

Negro suffrage, 85. 

Porter, General Horace, 83. 
Pryor, Judge Roger A., speech 
of, 83-86. 

ViCKSBURG, 84. 

THE RECIPROCAL OBLIGATIONS OF 
THE BENCH AND THE BAR 

Bacon (quoted), 90. 

Bar, reciprocal obligations of the 

Bench and, 89-92. 
Bench and Bar, reciprocal obliga- 
tions of the, 89-92. 
duty to Bar, 90, 91. 
frailties of, 92. 
Brief, attraction of. 89. 

Choate, Judge Rufus, 91. 
Court, advocate entitled to at- 
tention of, 90. 
how to gain attention of, 90. 
Counsel, duty of, 89. 

Eloquence, forensic, 89. 

Forensic eloquence, 89. 

Horatian precept, imperative, 90. 

Judge, amenities of the gentle- 
man not incompatible with 
the dignity of a, 91. 
his duty to case, 91. 
Judicial office, awful responsibil- 
ity of, 92. 
functions of the, 92. 
Justice, delay of, 91. 
denial of, 91. 
essential part of, 90. 
sale of, 91. 

Law school, annual dinner of the 

university, 89. 
Lawyer, the reward of, 92. 

Magna Charta, 91. 

University Law School, annual 
dinner of alumni of, 89. 

the bar and forensic oratory 

Albany Law School, 95. 
Authors, dangers of inferior, 99, 
100. 



value of the master, 99, 100. 

Bacon, Sir Roger, 106. 
Bain, Professor, 103. 
Bar, consummate distinction of, 
117. 
eloquence of the, 108 et seq. 
success at, how attained, 95 et 

seq. 
the, and forensic oratory, 95- 
118. 
Bolingbroke, Lord, 116. 
Burke, Edmund, iii. 

Cause, how to win your, no et 

seq. 
Choate, Rufus, 115. 
Cicero, 97, 98. 
Commentaries, Kent's, 103. 
Court, respect to, 107. 
Cross-examination, care in, 107. 

Delivery, precepts of, 116. 
Demosthenes, 104, 114, 116. 

Eloquence, aspects of, 108, 109. 
how acquired, 114 et seq. 
importance of delivery in, 116. 
newspapers effect on, 113. 
stenographer's effect on, 113, 
the art of persuasion, 109. 
what constitutes effective, 113. 
Emmet, Robert, 108. 
Erskine, James (Lord Grange), 

109, 115. 
Evidence and procedure, knowl- 
edge of the law of, neces- 
sary, 99. 

Facts, to master, the most valued 
equipment of a lawyer, 101. 

Folger, 102. 

Forensic genius identical with 
those of military, 107. 

Fox's test of a speech, 112. 

Franklin, Benjamin, 116. 

Hall, Robert, 115. 
Henry, Patrick, 115. 
Hobbes, 103. 
Hoffman, 108. 
Hume, David, 116. 

Institutes of Oratory, 107. 

Johnson, Dr. Samuel, 103. 
Juries, Rights of, 109. 
Jurisprudence, intricacy of mod- 
ern, 98. 
Jury, respect to, 107. 
Justinian age, 98. 



256 



INDEX 



Kent's Commentaries, 103. 

Law, end and aim of, 117, 118. 

a noble vocation, 117. 
"Lawyers, first orator among," 

117. 
Leading Cases, Smith's, 102. 
Locke, John, 103. 

On the Conduct of the Under- 
standing, 106. 

Macaulay, Lord, 115. 
Macintosh, Sir James, 112. 
Mansfield, 100. 
Marshall, John, 100. 
Memory, Art of, 105. 

Newspapkr, effect on forensic 
eloquence, 113. 

O'CoNNELL, Daniel, 115. 
On the Conduct of the Under- 
standing, 106. 
"Orators, first lawyer among," 

117- 
Oratory, aim of, iii. 
forensic, 108 et seq. 

Peltier, 112. 

Persuasion, art of, how com- 
passed, no. III. 
Pinkney, 108. 
Portia, 97. 
Prentiss, 115. 
Press, freedom of, 112. 

QUINTILIAN, 102, 105. 
RaPALLO, 102. 

Reading, how shall it be done? 

102, et seq. 
value of. to the lawyer. 102. 
Reports, value of, to the prac- 

ticinR lawyer, 100 et seq. 
Rights of Juries, 109. 

Shakespeare (quoted), 97. 
Smith's Leading Cases, 102. 
Stenographer, has effect on foren- 
sic eloquence, 113. 

Trial, requisites for the success 

in, 107. 
Thucydides, 104. 

VVkbster, Daniel. 115. 
Whately. Archbishop, 107. 
NVhitcficld, fJeorge, 116. 
\V It Messes, respect to, 107. 
Wirt. William. ,08. 



INFLUENCE OF VIRGINIA IN THE 

FORMATION OF THE FEDERAL 

CONSTITUTION 

Amendment, Tenth, 139. 
Amendments, first eight, 139. 
American Commonwealth (quot- 
ed), 145. 
Assembly, General, 124. 

"Bacon's Rebellion," 124. 
Bancroft, George (quoted), 131- 

132. 
Bill of Rights, 134, 139. 
Blair, 133, 136, 
Boregeaud, Dr. (quoted), 135, 

142. 
Brougham, Lord (quoted), 122. 
Bryce, James (quoted), 122, 145. 
Byrne, 142. 

California, 147, 
Chase, Justice, 141. 
Clark, George Rogers, 127. 
Commonwealth (V^a.) v. Caton, 

143- 
Confederacy, Southern, 147, 
Confederation, Articles of, 127, 
136. 

articles of, a "league of friend- 
ship," 129. 

futility of Articles of, 130. 
Congress, General, 125. 
Constitution, Federal, an evolu- 
tion, 123. 

at once Federal and National, 
.136. 

credit of construction of, 
awarded to Virginia, 122, 
146. 

Hamilton's plan, 138. 

influence of Virginia in the 
formation of, 121-147. 

interest manifested in, 122. 
James Bryce on, 122, 145. 

Federal, Lord Broughton on, 
122. 

New Jersey plan, 138. 

only Judicial Department com- 
petent to interpret, 140 et 
seq. 

portion of, regulating relations 
of Union and States wholly 
original, 136. 

rivalry as to credit of con- 
struction of, 122. 

retrospect of conditions from 
which evolved, 145, 146. 

Federal, supreme autocracy of 
the Executive, 121. 

Virginia plan, 138. 

Virginia plan adopted, 138, 146. 



INDEX 



257 



Virginia's imperishable monu- 
ment, 146. 
wholly American, 135. 
William E. Gladstone on, 122, 
123. 
Constitutional Convention of 

1787, 132 et scq. 
Convention of 1787, 123. 
Cooley, 143. 
Cromwell, Oliver, 124. 

Declaration of Independence, 

125. 
Dutch republic, 135. 

Eastern States accede to Span- 
ish occlusion of Mississippi 
River, 128. 

Executive power regal, 140. 

FiSKE, Professor John (quoted), 

137. 138; 
Florida, accession of, 146. 

Gladstone, William E. (quoted), 
122, 123. 

Government departments are co- 
ordinate and independent, 
121. 

Hamilton, Alexander, 138. 
Hare, Judge (quoted), 137, 138. 
Henry, Patrick, 133. 
Hildreth, Richard (quoted), 133. 

Illinois part of Northwestern 
territory, 128. 

Indian warfare, 125. 

Indiana part of Northwestern ter- 
ritory, 128. 

Jay, John, 128. 

Jefferson, Thomas, 125-126, 133. 
Judicial Department a safeguard, 
140 et seq. 
interpretation of legislative en- 
actment, origin of, 143. 
Rhode Island's claim to, 143. 
\'irginia's claim to, 143-144, 
146. 
Judiciary, American respect for, 
141. 
power of, to interpret legislative 
enactment the admiration of 
foreign jurists, 142 et seq. 

Kent, James, 143. 

Lee, Richard Henry, resolution 

of, 125. 
Robert E., 147. 
Legislature subject to popular 

will, 140. 



"Lost Cause," 147. 
Louisiana Purchase, 146. 
Lutherans, German, 124. 

Madison, James, 133, 134, 136, 

137, 138. 
Magna Charta, 143. 
Maine, Sir Henry (quoted), 142. 
Marbury v. Madison, 144. 
Marshall, John, 121, 133, 144, 145. 
develops Constitution to full 
power, 145. 
Mason, George, 133, 134, 136, 139. 
Mayilower, 123. 
Michigan part of Northwestern 

territory, 128. 
Mississippi river, occlusion of, by 
Spanish Government, 128- 
129. 
Virginia opposes Spanish occlu- 
sion of, 129. 
Monongahela, 125. 
Monroe Doctrine, 147. 
James, 133. 

New Hampshire, constitution of, 

126. 
Northwestern territory, Virginia's 

right to, 127. 

Ohio part of Northwestern ter- 
ritory, 128. 

Parliament, 143. 

Pendleton, 133. 

Petition of Rights, 143. 

Point Pleasant, 125. 

Presbyterians, Scotch-Irish, 124. 

Randolph, John, 133. 

Peyton, 125. 
Restoration, Virginia's status un- 
der the, 124. 
Rights, Bill of, 126. 

Virginia's declaration of, 126. 

South Carolina, constitution of, 

126. 
Stamp Act, Virginia's opposition 

to, 125. 
State rights, 136-137, 140, 146. 
rights, how conserved, 140 et 
seq. 
"States, indestructible union of 
indestructible," 121. 
rights nullified, 121. 
sovereignty of, 134. 
the united colonies are and 
ought to be free and in- 
dependent," 125. 
Stevens, Dr. Ellis (quoted), 135, 

142. 
Story, Joseph (quoted), 123, 143. 
Swiss Confederacy, 135. 



258 



INDEX 



Texas, independence and acquisi- 
tion of, 147. 

Tocqueville, De (quoted), 142. 

Trevett vs. Weedon, 143. 

Trumbull, Jonathan (quoted), 
131- 

United States' rank as a ruling 
power, 121. 

Venice, republic of, 135. 
Virginia Bar Association, address 
before, 121. 

constitution of, 126; model for 
Federal constitution, 126, 
132, 136, 138, 146. 

credit of construction of Fed- 
eral Constitution awarded 
to, 122 et seq. 

declares her independence, 125, 
132. 

demands stronger constitution, 
130, 132, 146. 

demands guarantees of the 
rights of the states. 139, 
1 40. 

influence of, in the formation 
of the Federal Constitution, 

, 121-147. 

mvites sister States to a union 
of interests (1773), 125, 
132. 

proposes renunciation of al- 
legiance to the Crown, 125, 
132. 
Virginians confront Cromwell, 
124. 

extorted concessions (1621), 123- 
124. 

protest (1624), 124. 
\'irginians selected their own 

governor (1635), 124. 
Virginia's additional contribution 
to federal power, 128. 

plan of government first in his- 
tory of self-government, 
126, 132, 136, 146. 

Wasiiincton, George, 125, 133, 

'47. 
labors of, for stronger union of 

States. 1 30-131. 
Wisconsin part of Northwestern 
«f . territory, 128. 
Wythe, Chancellor, 133, 144, 

THE PEOPLE OF THE STATE OF NEW- 
YORK VS. THE NORTH RIVER 
SUGAR REFINING COMPANY 

Absolute ownership of property 
must not be suspended, 243- 

24o> 



Agreement or combination is the 
vice, 184-185. 

Agreements, law looks to the gen- 
eral tendency of power 
conferred, 184. 
limiting production illegal, 183- 

184. 

tend to prevent free competi- 
tion, 184. 

tending to restrain natural ri- 
valry against public policy, 

184. 

Anne, statute of, limiting copy- 
right, 150. 
Federal and State laws protect 
monopolies, 151. 

Appellant is estopped (citations), 

153. 
Appellant's main argument, 198- 
199. 



Black Friday, 195, 

Capital, tendency of, 'to seek 

highest profits, 199. 
Charter, language employed in 
the act of, defines powers 
(citation), 161. 

of a corporation the measure 
of its powers (citations), 
162. 

violation of, to be punished by 
a judgment of ouster and 
dissolution (citation), 162. 
Charters and franchises are con- 
tracts (citation), 156. 

Legislature's view, in granting 
(citation), 155-156. 
Combination a consolidation of 
corporations, 232-233. 

any, to do an act injurious 
to trade is a criminal con- 
si^iracy, 207. 

character of, determined by in- 
strument constituting it, 
183. 

created by Svigar Refining Co. 
deed a criminal conspiracy, 
182. 

formed of corporations, 215- 
217. 

impotent to control competi- 
tion, 198-199. 

need not be complete monopoly, 
194- 

otherwise lawful, a crime if its 
intent is monopoly, 207. 

will be held to intend obvious 
effect, 225. 



INDEX 



259 



Combinations and agreements, 
when unlawful, 172-182. 

courts will not stop to inquire 
injury inflicted upon pub- 
lic, 183. 

effect of adjudications on, 181. 

legitimate vs. unlawful, 206- 
208. 

may indefinitely increase prices, 
how, 197. 

nascent rivals crushed by es- 
tablished, 201. 
Commodities, what controls prices, 

186 et seq. 
Common Law adequate to destroy 

trust-combinations, 151. 
Competition destroyed fatal to 
trade (citation), 170. 

if excluded, and one trust con- 
trols, what follows? 210- 
211. 

restriction of, contrary to pol- 
icy of New York State, 
180-181. 

the right to exclude, injurious 
to public (citation), 170. 
Constitution of the company, 22y- 

228. 
Contract, a, in total restraint of 

trade is void, 179. 
Cojiartnership liability ineffectual 

to efface illegality, 206. 
Copper syndicate, 200. 
Corporate act, unauthorized, il- 
legal, 162. 

charters annulled in case of 
non-user, 245. 

franchise, rule prevails in quo 
warranto, to forfeit (cita- 
tions), 153. 
Court must determine uncontro- 
verted state of facts (cita- 
tions), 153. 

direct a verdict, if proof of 
fact be preponderating (ci- 
tation), 153. 

privileges conditional upon per- 
formance of duties en- 
joined (citation), 157. 

rights and powers the correla- 
tives of corporate obliga- 
tions (citation), 158. 
Corporation, act of, in violation 
of law forfeits franchises 
(citations), 160. 

its constituents the act of the 
(citation), 164-165. 
Corporations can exercise no 
power not expressly grant- 
ed (citations), 162. 



make no contract not necessary 
for purposes of charter, 
231-232. 

cannot be created merely to 
consolidate with another, 
231. 

consolidate their funds unless 
authorized, 233-235. 

contract made by a, in viola- 
tion of its charter is ultra 
vires and void (citation), 
164. 

with, may be binding although 
an abuse of powers (cita- 
tion), 163. 

of, unauthorized are illegal (ci- 
tation), 163. 

creation of, an act of sover- 
eignty, 155. 

court will construe upon its 
manifest tendency, 185. 

doing unauthorized acts may 
forfeit franchise (cita- 
tions), 163. 

domestic, charter may be vacat- 
ed, 152. 

existence of, may be annulled 
when (citations), 160. 

grant a pledge to public (cita- 
tion), 159. 

has no authority to do acts in- 
dictable by public law, 209. 

if utility be lessened, it is a 
forfeiture (citation), 162. 

may be dissolved (citation), 
157- 

for breach of trust (citation), 
158. 

when exercising a privilege not 
conferred (citation), 164. 

may incur a forfeiture of fran- 
chise by doing an illegal 
act (citation), 163. 

must apply funds as provided 
in act of incorporation, 243. 

be managed in interest of 
shareholders, 241. 

come up to substantial objects 
for which instituted (cita- 
tion), 158. 

demean itself faithfully (cita- 
tion), 157. 

objects for which, created (ci- 
tations), 155. 

primary object of the institu- 
tution of (citations), 157. 

public have an interest that it 
shall not transcend powers 
(citation), 159. 



j6o 



INDEX 



public has interest in proper 
administration of powers 
(citation), 163. 

statutory, is limited as to all 
its powers, 230-231. 

what it undertakes and agrees 
(citation), 158. 
Corporations, Attorney-general's 
authority in relation to (ci- 
tation), 164-165. 

relation of, to company, 22S- 
230. 

rule of construction in cases of 
(citation), 161. 

that become monopolies a pub- 
lic menace, 180. 

transfer of control illegal, 236- 

239. 
what constitute, 219-224. 
where, abuse powers by acts 
ultra vires State may re- 
claim charters (citation), 
164. 
Corporators are the corporation, 
219-224. 

Defendant corporation has for- 
feited its charter, why, 235- 
239, 241-242, 248. 

did an act ultra vires, 22y. 

guilty of excess of powers, 227. 

moves Court to direct verdict 
in its favor, 151-152. 

party to the combination, 217- 
219. 

violated condition of franchise, 
225-226. 
Defendant's charter, forfeiture 
of, 155. 

KviDENCE competent to prove es- 
sential fact, 154. 
solitary exception to, plainly 
untenable (citations), 154, 

roBPKiTi'RE by acts ultra vires— 
IJank, chartered, and acts ul- 
tra vires (citation), 166. 
embezzlement of funds on de- 
|»osit with (citation), 166. 
ncKk-ct of, to make report 
rc<iuired by law (citation), 
166. 

violatinsr a restriction on rate 

of interest (citation), 166. 
CoUeue. chartered, and acts 

ultra vires (citation), 166, 
i-ori.oration dividinK Legislative 

ai)|>roj>riation wiih agent 

(Citation), 166. 



Corporation holding property in 
violation of restraints of 
charter (citation), 167. 
Further grounds of, 167. 
Insurance company carrying on 
banking operations (cita- 
tion), 166-167. 
Railroad company ceasing to 
operate a part of its route 
(citation), 167. 
company, extortionate charges 

by (citation), 166. 
company, if a. abandons a 
portion of its line (cita- 
tion), 167. 
company keeping records, of- 
ficers, etc., in another 
State (citation), 166. 
omission to make report re- 
quired by law (citation), 
166. 
company, unauthorized lease 
of_ its road, rights, fran- 
chises (citations), 167. 
common law ground still avail- 
able (citation), 165. 
Franchises, corporate, become 
void in case of misuse, 158. 
granted in trust, 156. 
may be forfeited by acts and 
contracts ultra vires the 
corporate authority, 161. 
may be lost by misuser or 

nonuser (citations), 159. 
misconduct of corporators 
operates a forfeiture, 219, 
223-224. 
subject to condition that 
privileges and franchises be 
not abused (citation), 159. 
granted upon condition that 
they be executed according 
to charter (citations), 157. 
for proper use (citations), 
157. 
grants of, are conferring peo- 
ple's rights (citation), 156. 
may be forfeited (citation), 156. 
for breach of trust (cita- 
tion), 158. 

Cold Ring, 195, 200. 

Grants, in, by the public, noth- 
ing passes by implication 
(citation), 161. 

"Great Quo Warranto Case," 165. 

Incorporation act an enabling 
act (citation), 161. 
right of, in the nature of a 
contract, 240-241. 



INDEX 



261 



Joint Stock Company, 228. 

Judgment is unimpeachable, 155. 

Labor cannot withdraw from the 
market. 204. 
may combine to better condi- 
tions, 204-205. 
tendency of, is to seek highest 
wages, 199. 

"Large production," law of, 201. 

Law not to be hoodwinked by 
colorable pretenses, 185. 



Macy's not a monopoly, 202, 203. 

Man, a, may not contract to form 

a monopoly, 208. 

a, may not do as he pleases 

with his own, 208. 

Mogul Steamship Co., case of, 

179. 
Monopolies are bane of body poli- 
tic (citation), 169. 
destructive of individual right 

(citation), 169. 
detrimental to public welfare 

(citation), 168. 
distinguished, 201. 
intolerable (citation), 169. 
justly odious (citation), 169. 
tend to public prejudice, 168. 
public policy opposed to (cita- 
tion), 170. 
ruling of Kentucky Court of 
Appeals, 171. 
of New York Court of Ap- 
peals, 171. 
of Superior Court of San 

Francisco, 171. 
of Supreme Court of Cali- 
fornia, 171. 
of Supreme Court of Illinois, 

171. 
of Supreme Court of Michi- 
gan, 1 7 1 . 
statute against, the magna 
charta of IBritish industry 
(citation), 170. 
MonoDoly a crime, 179. 

against public policy (citation), 

170. 
agreement, Lord Campbell on, 
183. 
tending to, one illegal (cita- 
tions), 167-168. 
as controlling prices, 187-189. 
comprehends, what, 195. 
control of State supply of a 
commodity constitutes a, 
198. 
end and aim is to increase 
prices, 203. 



is, wherever competition is not, 
188. 

of copy and patent rights a 
reward of genius, 181. 

only "temporary," 200. 

opposed to rivalry in trade (ci- 
tation), 169. 

partial, 195-196. 

prices, effect of "outside" com- 
petition, 196. 
partial supply must meet, 
197-198. 

price of, the highest, 188. 

tends to control prices, 187. 

three inseparable incidents to, 
170-171. 

thrives on diminution of sup- 
ply, 202. 
Mortmains and entails, prohibi- 
tion of, 244. 
Municipal by-law, a, in restraint 
of trade is void, 179. 

North River Sugar Refining 
Company, delivery of stock 
of, 211-215. 

Perpetuity inimical to public 

weal, 244-248. 
statute of, not self-denying, 

247-248. 
Plaintiff, facts most favorable to, 

must be deemed found in 

his favor (citation), 154. 
on motion of. Court directs 

verdict in favor, 153. 
Points, 153-248. 
Pooling arrangements, 205. 

Sale, a, implies what, 205. 

no true, 205-206. 
Standard Oil Company, 201, 203, 

204. 
Statement, 152. 

Sugar Refining Company a crimi- 
nal conspiracy by com- 
mon law, 182. 
in the State of New York 
by express provision of 
statute, 182. 
an illegal combination, 193, 194. 
combination created liy, injuri- 
ous to trade. 182. 
contends it is impossible to 
monopolize production, 193- 
194. 
deed creates a monopoly in the 

strictest sense, 209. 
does not constitute a combina- 
tion tending to monopoly, 
186. 



262 



INDEX 



finds no justification in right 
accorded labor to organize, 
204. 

its object to concentrate pro- 
duction under single will, 
189-192. 

not a mere partial restraint of 
trade, 208-209. 

what constituted, 217-219. 
Supply and demand, courts have 
nothing to do with the laws 
of. 171. 

the natural law of (citation), 
169. 



"Tendency," ambiguity of, 199. 
Trust-combination, first effort to 
break up, 151. 



an act, an infraction of posi- 
tive law, 162. 
is an abuse of the corporate 

franchise (citation), 164. 
is the usurpation of a fran- 
chise (citation), 163. 
see also Forfeiture. 
"Unlawful" as applicable to cor- 
porations (citation), 164. 

Ultra Vires, acts and contracts, 
161 et seq. 

Verdict of jury a general ver- 
dict for the people (cita- 
tions), 154. 

Wanamaker's not a monopoly, 
202, 203. 



31J.77-2 



' 



